NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

RANCHI

CONSTITUTION-II SUBMISSION

SUBMITTED BY: SUBMITTED TO:

ARUSHI SINGH DR. K. SYAMALA

SEMESTER III ASSISTANT PROFESSOR
SECTION A
ROLL NUMBER:859
HOECHST PHARMACEUTICALS V STATE OF BIHAR AIR 1983 SC
1019
Case Notes
Relevant Entries
List II Entry 54 —Taxes on sale and purchase of goods
List III Entry 33 –Trade and Commerce and the production supply and
distribution of the products of any industry where the control of such industry is
declared by Parliament by law to be expedients in public interest.
Law passed by Parliament under entry 33 List III
Essential Commodities Act 1955 has been passed by Parliament under entry 33
List III providing for regulation production supply and distribution of essential
commodities
Under this law the Central government passed an order by under section 3 of the
Act which stated that manufacturers or producers of goods could pass on the tax
liability (sales tax and excise duty) to the consumers. In other words the sales tax
could be recovered from purchasers of goods and products by the manufacturers
and producers.
The Central law was on the subject of Price Fixation of essential commodities
under entry 33 List III
Law passed by Bihar Legislature under Entry 54 List II
Section 5 of Bihar Finance Act 1981 prohibited the dealers to recover surcharge
( sales tax) from the purchasers .This law interdicted that no dealer liable to pay
a surcharge in addition to tax payable by him shall be entitled to collect the
amount of surcharge from the purchaser.
Section 5 provided for the imposition of a surcharge at 10 percent of the amount
of tax payable by a dealer whose gross turnover during a year exceeded rupees
5 lakhs, in addition to tax payable by him’
FACTS
Messrs Hoechst Pharmaceuticals and Glaxo Laboratories challenged the Bihar
Act on the ground that under the Central law they were allowed to pass on the tax
liability to consumers but the Bihar Act denied them
Argument of Petitioners
Price fixation is an occupied field by Central law and State law is repugnant to
Central Law and hence void under Article 254(1).
Argument of Bihar State
Central law and State law operated in different and distinct fields. Under entry 54
List II
Under Entry 54 the State while levying a tax on sale or purchase of goods is
competent to prohibit the dealers liable to pay a surcharge from recovering the
same from the purchaser.
Apparent Conflict
There was an apparent conflict between Central law which allowed
manufacturers or producers of drugs to pass on the liability to pay sales tax to the
purchaser and the State law which prohibits such manufacturers or producers to
recover surcharge (sales tax) from purchasers
Argument of Petitioners
Since Parliament has chosen to occupy the field of price fixation under entry 33
List III the State legislature is not competent to pass a law under entry 54 List II
prohibiting the passing of liability of tax to the purchasers, Hence the State law
was repugnant to Central law and void under 254 (1)
The Supreme Court held
“The true principle in judging the constitutional validity of section 5 of the Act
is to determine whether in pith and substance it is a law relatable to Entry 54 of
List II and not whether there is repugnancy between section 5 of the Act and Price
Control order made by the Central government under Essential Commodities Act
under entry 33 of List III.”
“The question of repugnancy under Article 254 (1) between a law made by
Parliament and a law made by the State legislature can arise only in case both
the legislations occupy the same field with respect to one of the matters
enumerated in the Concurrent List, and there is a direct conflict between the two
laws. It is when both these requirements are fulfilled that the State law will to the
extent of repugnancy, become void.”
“Article 254(1) has no application cases of repugnancy due to overlapping found
between List II on the one hand and Lists I and III on the other. If such
overlapping exists in any particular case the State law will be ultra vires because
of the non-obstante clause in Article 246(1) read with the opening words “subject
to” in Article 246(3). In such a case the State law will fail not because of
repugnance to the Union law but due to want of legislative competence”
“The underlying principle is that the question of repugnancy arises only when
both the legislatures are competent to legislate in the same field that is with
respect to one of the matters enumerated in the Concurrent List. Article 254(1)
cannot apply unless both the Union and State Law relate to a subject specified in
the Concurrent List and they occupy the same field”
Decision
There cannot be any intrusion by a law made by Parliament under entry 33 List
III into a forbidden field viz the State’s exclusive power to make a law with
respect to levy and imposition of a tax on sale or purchase of goods relatable to
Entry 54 List II. It follows that the two laws viz the price control order passed by
the Central government under Essential Commodities Act passed under entry 33
List III and Section 5 of the Bihar Finance Act operate on two separate and
distinct fields and both are capable of being obeyed. There is no question of any
clash between the two laws and the question of repugnancy does not come into
play.
AS KRISHNA V/S STATE OF MADRAS

Case Note
Constitution - Constitution of India - Article 14 - Doctrine of pith and
substance - Madras Prohibition Act is a statute relating to intoxicating
liquors and the power of search and seizure are wholly ancillary to the
exercise of legislative power - The Act is entirely within the exclusive
competence of the provisional legislature - Appeal dismissed
FACTS
On November 18, 1953, the Prohibition Officer, Madras
and the Deputy Commissioner of Police made a search of premises No. 28,
Thanikachala Chetty Street, Thyagarayanagar, Madras, and seized several bottles
of liquor and glasses containing whisky and soda. The appellant, Lakshmanan
Chettiar, was residing at the premises, and the other three appellants, A. S.
Krishna, R. Venkataraman and V. S. Krishnaswamy, were found drinking from
the glass tumblers. All the four were immediately put under arrest and in due
course chargesheets were laid against them for offences under the Act. The three
appellants other than Lakshmanan Chettiar were charged under Sections 4(1)(a)
and 4(1)(j) for possession and consumption of liquor, and Lakshmanan Chettiar
was charged unders. 4(1)(k) for allowing the above acts in premises in his
immediate possession, and under s. 12 for abetment of the offences. He was also
charged under s. 4(1)(a) on the allegation that though he was a permit-holder, he
was in possession of more units than were allowed under the permit, and that by
reason of the proviso to that section, he had committed an offence under s. 4(1)(a).
Immediately after service of summons, the appellants filed an application under
s. 432 of the Criminal Procedure Code, wherein they contended that Sections 4(2)
and 28 to 32 of the Act were repugnant to the provisions of the Constitution, and
were therefore void, and prayed that the above question might be referred for the
decision of the High Court Third Presidency Magistrate, before whom the
proceedings were pending, allowed the application, and referred to the High
Court as many as seven questions on the constitutionality of various sections of
the Act. This reference was heard by Rajamannar, C.J., and Umamaheswaram, J.,
who held, disagreeing with the appellants, that Sections 4(2) and 28 to 32 were
valid, and answered the reference against them. Against this judgment, the
appellants have preferred the present appeals under Art. 136 of the Constitution

ISSUE
The point for decision in these appeals is whether Sections 4(2), 28, 29, 30, 31
and 32 of the Madras Prohibition Act No. X of 1937, hereinafter referred to as
the Act,are unconstitutional and void.
Contentions appealed were
Two contentions have been urged in support of the appeals :
(1) Section 4(2) and Sections 28 to 32 of the Act are void under s. 107 of the
Government of India Act, 1935, which was the Constitution Act in force when
the Act in question was passed, because they are repugnant to the provisions of
existing Indian laws with respect to the same matter, to wit, Indian Evidence Act
I of 1872 and Criminal Procedure Code
Act No. V. of 1898
(2) the impugned sections are repugnant to Art. 14 of the Constitution, and have
therefore become void under Art. 13.

APPELLANT’S ARGUMENT
Though the Act is within the competence of the Provincial Legislature in so far
as it prohibits possession, sale, consumption, etc., of liquor under s. 4(1), the
matters dealt with under s. 4(2) and Sections 28 to 32 fall not within Entry 31 of
List II but within Entries 5 and 2 respectively of List III, and to that extent, the
legislation is on matters enumerated in the Concurrent List. He contends that s.
4(2) enacting as it does a presumption to be drawn by the court on certain facts
being established, deals with what is purely a matter of evidence, and it is
therefore not a law on intoxicating liquors but evidence. Likewise, he argues, the
provisions in Sections 28 to 32 deal with matters pertaining to Criminal
Procedure, such as warrants, seizure and arrest, and have on connection with
intoxicating liquors. It is accordingly contended that Sections 4(2) and 28 to 32
are legislation under Entries 5 and 2 of List III, and that their validity must be
tested under s. 107(1).

ARGUMENTS AGAINST
The basic assumption on which the argument of the appellants rests is that
the heads of legislation set out in the several Lists are so precisely drawn as to be
mutually exclusive.
But then, it must be remembered that we are construing a federal Constitution. It
is of the essence of such a Constitution that there should be a distribution of the
legislative powers of the Federation between the Central and the Provinces. The
scheme of distribution has varied with different Constitutions, but even when the
Constitution enumerates elaborately the topics on which the Centre and the States
could legislate, some overlapping of the fields of legislation is inevitable. The
British North America Act, 1867, which established a federal Constitution for
Canada, enumerated in Sections 91 and 92 the topics on which the Dominion and
the Provinces could respectively legislate. Notwithstanding that the lists were
framed so as to be fairly full and comprehensive, it was not long before it was
found that the topics enumerated in the two sections overlapped, and the Privy
Council had time and again to pass on the constitutionality of laws made by the
Dominion and Provincial legislatures. It was in this situation that the Privy
Council evolved the doctrine, that for deciding whether an impugned legislation
was intra vires, regard must be had to its pith and substance.
That is to say, if a statute is found in substance to relate to a topic within the
competence of the legislature, it should be held to be intra vires, even though it
might incidentally trench on topics not within its legislative competence.
DECISION
It is therefore clear that even on the application of the due process clause, the
presumptions laid down in s. 4(2) cannot be struck down as unconstitutional. We
should add that the construction which the appellants seek to put on s. 4(2) that a
person in possession of liquor could, under that section, be presumed to have
committed an offence under s. 4(1)(g) or that a person who is in possession of
materials, implement or apparatus could be presumed to have committed offences
under s. 4(1)(a) and (j) is not correct. In our opinion, the matters mentioned in s.
4(2) should be read distributively in relation to the offences mentioned in s. 4(1).
Possession of liquor, for example, is an offence under s. 4(1)(a). The presumption
in s. 4(2) is that if it is found in the possession of a person, he should be presumed
to have committed the offence under s. 4(1)(a), unless he could give satisfactory
explanation therefor, as for example, that it must have been foisted in the place
without his knowledge. Likewise, it would be an offence under s. 4(1)(g) to be in
possession of materials, still, implement or apparatus whatsoever for the tapping
of toddy or the manufacture of liquor. Under s. 4(2)(a), if a person is found to be
in possession of materials or other things mentioned in the sub-section, there is a
presumption that he has committed an offence under s. 4(1)(g), but it is open to
him to account satisfactorily therefor. The contention, therefore, that there is not
reasonable relation between the presumption and the offence is, in our opinion,
based on a misreading of the section.Appeal Dismissed.
MAR APPAREM KURI V/S UNION OF INDIA
Case Note
Building (Lease & Rent Control) Act 1965 (Kerala) - Section 11 - Transfer of
Property Act, 1882 - Section 109 - If the assignee landlord could make out
a case for eviction under Section 11, the fact that the tenant had not
consented to the attornment or that it would disrupt the unity and integrity
of the tenancy which he had with the original landlord is of no avail or
consequence,Held: On purchasing the tenanted premises the unity and
integrity of the estate could be split up and the assignee landlord could
seek eviction on the available grounds under section 11 of the Act. The
assignee however, has to show that the assigned portion is in a state of
being identified and partial eviction is possible on facts. There is no need
for the consent of the tenant for severance of the reversion and the
assignment of the part so severed. Further there is no need for a
consensual attornment since the attornment is brought about by operation
of law. Therefore the question of limitation on the right of the landlord
against splitting up of the integrity of the tenant, inhering in the
inhibitions of his own contract does not visit the assignee of the part of the
reversion. If the assignee landlord could make out a case for eviction under
Section 11 of the Act. the fact that the tenant had not consented to the
attornment or that it would disrupt the unity and integrity of the tenancy
which he had with the original landlord is of no avail or consequence. In
other words, the assignee landlord gets all the rights and liabilities of the
original landlord. If there was a fixed term of lease and the rate of rent is
also fixed between the patties and the term had not been expired the
assignee landlord would be governed by the original landlord and the
tenant. But when the lease period is over and the liabilities of the original
landlord qua the original tenant was discharged the assignee landlord has
got all the rights under the T.P. Act and the Rent Act and also the tenant
has got all the obligations under the Rent Act. The assignee landlord is also
entitled to seek eviction on all available grounds after the transfer. The
tenant is also entitled to all the defences available under the Rent Control
Act, but the limitation on the right of the landlord against splitting up of the
integrity of the tenancy, inhering in the inhibitions of his own contract
does not visit the assignee of the part of the reversion.

FACTS
The petitioner-landlord is a partner of "Ambady Jewellers" situated on the eastern
side of the M.O. Road at Thrissur and his brother is the other partner. Jewellery
shop is situated on the ground floor of the building. Tenanted premises is situated
at its upstair portion and the entire upstair portion of the building was taken on
rent by respondent tenant from Oliyapuram family. Upstair portion bears No.
XXV/2214 was purchased by the petitioner-landlord. Petitioner-landlord as we
have already indicated is conducting a jewellery shop in the ground floor of the
building along with his brother. There is no sufficient space in the ground floor
to accommodate their goldsmiths. Landlord therefore wanted additional
accommodation so as to accommodate their goldsmiths under Section 11(8) of
the Act. Plea under Section 11(3) was also raised. Rent Control Court and
Appellate Authority proceeded as if the landlord's claim is under Section 11(8).
Tenant resisted the petition stating that the attempt is only a ruse to evict him.
Further it is also stated that the tenant is conducting a kuri business having branch
offices at various places and that all its branches are controlled by Head Office
housed in the schedule premises. Further it is also stated that he has taken out the
entire upstair portion from one Oliyapuram Tarwad and that even if his original
landlord had sold away a portion of the property to the present landlord, landlord
cannot successfully maintain a petition lest it would split up the unity and
integrity of the tenancy. Further it was also stated that the tenant was unaware of
the assignment and there was no attornment of tenancy by present landlord.
Landlord in order to establish his case got himself examined as PW. 1 and
produced Exts. A1 to A6 documents. On the side of the tenant RW-1 was
examined. A commission was taken out. C1 is the commission report. C1(a) and
C1(h) are the sketches. Commissioner was examined PW-2. Rent Control Court
and Appellate Authority concurrently found the need urged by the landlord is
bona fide and his requirement of additional accommodation squarely falls under
section 11(8) of the Act and ordered eviction. It was also found the hardship
which may be caused to the tenant by granting the application will not outweigh
the advantage to the landlord. Aggrieved by the concurrent findings rendered by
the Rent Control Court and Appellate Authority this revision has been filed.
Counsel appearing for the tenant revision petitioner Sri. P.B. Krishnan submitted
that the landlord is the assignee of the tenanted premises and the tenancy granted
to him by the original landlord is indivisible and an assignment of a portion of the
tenanted premises would not enable a splitting of the tenancy. Counsel submitted
the entire upstair portion of the building was taken out on rent by him from
Oliyapuram Tarwad by single entrustment. Therefore it is not open to the original
landlord or the assignee landlord to split up the tenancy and seek eviction of his
part counsel also referred to C1 commission report and submitted that on facts
also it would not be possible to split up the tenancy.

The law is therefore that if a tenanted premises is assigned the assignee becomes
the landlord. There is no right to the tenant to prevent the assignee purchasing the
tenanted premises. A transfer of property passes forthwith to the transferee all the
interest which the transferor had in the property, including the easement annexed
thereto as also the rents and profits accruing / due from that property after the
transfer. If the transferor / lessor assigns any part of the property, the transferee
acquires all the rights of the lessor in respect of that part of the property under
Section 109 of the T.P. Act. The transferee also entitled to sue for ejectment in
accordance with the Rent Control Act. In a case where a transfer as a result of
which the property is divided into several shares and each share comes to be
vested separately in each owner, each of the several owners will be entitled to his
shares of the rent or benefit of any other obligation relating to the property as a
whole. In such a situation, before the tenant is required to split up the rent and
pay separately to each owner, he has to be informed of the transfer by a notice
which, by itself, will be sufficient to convert the single obligation into several
obligations and he will be liable to pay rent to each co-sharer separately. Further
it is also open to the owners to apportion is made, the obligation of the tenant
remains single and in that situation the lessor will not be allowed to split the
tenancy by recovering the rent of a part only, nor can a purchaser of a part of the
property insist on payment of his part of the rent to him. But if the lessor transfers
any part of his interest in the property leased the transferor becomes a co-sharer
and the transferee alone cannot determine the tenancy or sue for ejectment
without other co-lessors in the junction of parties or unless and until the transferee
gels a partition effected which automatically splits up the tenancy and vests the
transferee the rights of ejectment which is inherent in ownership.

ARGUMENT PETITIONER
Petitioner-landlord in the instant case purchased a portion in the upstair portion
of the building and became the owner. The ground floor is already in the
ownership and in possession of the petitioner-landlord. Facts would indicate that
he has purchased the portion bearing No. XXV/2214. The rest of the premises,
i.e. XXV/2215 is in the possession of the tenant. Landlord is conducting jewellery
business in the ground floor bearing No. XXV/1477. The said room along with
its proportionate rooms in the first and second floors were purchased by the
landlord as per document No. 4437/98 dated 7-12-1988. Commissioner in his C1
report has stated that the upstair portion was made as one room by jointing two
rooms On facts Rent Control Court and Appellate Authority concurrently found
that upstair portion hall could be split up and the portion purchased by the
petitioner-landlord, viz XXV/2214 is identifiable. It is that portion which was
purchased by the landlord as per document No. 4437/88. Landlord has therefore
become the owner of the tenanted premises. On purchasing the tenanted premises
the unity and integrity of the estate could be split up and the assignee landlord
could seek eviction on the available grounds under section 11 of the Act. The
assignee however, has to show that the assigned portion is in a state of being
identified and partial, eviction is possible on facts. There is no need for the
consent of the tenant for severance of the reversion and the assignment of the part
so severed. Further there is no need for a consensual attornment since the
attornment is brought about by operation of law. Therefore the question of
limitation on the right of the landlord against splitting up of the integrity of the
tenant, inhering in the inhibitions of his own contract does not visit the assignee
of the part of the reversion. If the assignee landlord could make out a case for
eviction under Section) 11 of the Act, the fact that the tenant had not consented
to the attornment or that it would disrupt the unity and integrity of the tenancy
which he had with the original landlord is of no avail or consequence. In other
words the assignee landlord gets all the rights and liabilities of the original
landlord. If there was a fixed term of lease and the rate of rent is also fixed
between the parties and the term had not been expired the assignee landlord would
be governed by the original landlord and the tenant. But when the lease period is
over and the liabilities of the original landlord qua the original tenant was
discharged the assignee landlord has got all the rights under the T.P. Act and the
Rent Act and also the tenant has got all the obligations under the Rent Act. The
assignee landlord is also entitled to seek eviction on all available grounds after
the transfer. The tenant is also entitled to all the defences available under the Rent
Control Act, but the limitation on the right of the landlord against splitting up of
the integrity of the tenancy, inhering in the inhibitions of his own contract does
not visit the assignee of the part of the reversion.Rent Control Court and Appellate
Authority have concurrently found that the tenant is not entitled to get the benefit
of the first proviso to section 11(1) of the Act.It is for the tenant to establish that
the hardship which would be Caused to him if he is evicted would outweigh the
advantages of the landlord. Further the landlord has also to establish the
advantage that would enure to him outweigh the hardship caused to the tenant.
Landlord has stated the advantage-that would enure to him. If the upstair portion
is evicted he could conduct the jewellery shop in the ground floor of the building
by accommodating his goldsmiths which is necessary for the functioning of the
jewellery shop. No evidence has been adduced by the tenant to show that the
landlord has got any other building in his possession in the same city, town or
village where he could accommodate his goldsmiths. On the other hand, landlord
has stated that the tenant has got other buildings of his own in the same town and
few of the rooms in that building was sold and some of the rooms were let out
three months back. It is also stated that even after evicting the portion of the
upstair portion the main portion could be utilised by the tenant. Tenant is
conducting kuri business. He has got various branches. Major part of the business
is operating from Bangalore and Faridabad. Further, there is no difficulty for
entry to both the rooms in the upstair portion since there is a common verandah.
Rent Control Court and Appellate Authority as we have already indicated have
found the hardship that would be caused to the tenant by granting the application
will not outweigh the advantage to the landlord We therefore find no illegality,
irregularity or impropriety in the findings rendered by the Rent Control Court and
Appellate Authority. Under such circumstances revision lacks merits and the
same is dismissed. However, in the facts and circumstances of the case we are
inclined to grant time to the tenant to vacate the premises upto 30-06-2004
provided he files an undertaking before the Rent Control Court within one month
that he would vacate the premises within the aforesaid time and that he would pay
arrears of rent if any and also future rent.

ISSUE
Upon these facts, three questions fall for consideration in the appeal viz. (1)
whether the Central Amendment Act impliedly repealed the West Bengal
Amendment Act with effect from April 1, 1976; and if so, the effect of such
repeal. (2) Whether the High Court was justified in holding that the West Bengal
Amendment Act shall be deemed to have been obliterated from the Statute Book
for all intents and purposes inasmuch as the Central Amendment Act manifests
an intention to the contrary so as to exclude the operation of s.8 of the Bengal
General Clauses Act, 1899. And (3) Are the pending proceedings to be governed
by the change of procedure brought about by s.16A of the Act as introduced by
the Central Amendment Act; and further whether the continued operation of the
repealed West Bengal Amendment Act is preserved with regard to the
punishment to be imposed.

APPELLANT ARGUMENT
It is strenuously argued on behalf of the appellant that s.16A of the Act is not
retrospective in operation, and that it does not deal with procedure alone but
touches a substantive right. The submission is that in view of cls.(c), (d) and (e)
of sub-s.(1) of s.8 of the Bengal General Clauses Act, 1899 which provide that if
any law is repealed then unless a different intention appears, the repeal shall not
affect any liability incurred under any enactment so repealed or affect any legal
proceeding or remedy in respect of such liability, penalty or punishment as
aforesaid. It is said that there was a liability incurred by the commission of an
offence punishable under s.16(1)(a) of the Act as amended by the West Bengal
Amendment Act and s.8 of the Bengal General Clauses Act' 1899 preserved the
continued operation of the repealed West Bengal Amendment Act for imposition
of that punishment. The contention is that where rights and procedure are dealt
with together by the repealing Act, then, intention of the legislature is that the old
rights are still to be determined by the old procedure. In support of the contention,
reliance is placed on the decision of the Sargant, J. in rekind or in the procedure
prescribed. In all such cases, the law made by Parliament shall prevail over the
State law under Art.254(1). That being so, when Parliament stepped in and
enacted the Central Amendment Act, it being a later law made by Parliament
"with respect to the same matter", the West Bengal Amendment Act stood
impliedly repealed. It is strenuously argued on behalf of the appellant that s.16A
of the Act is not retrospective in operation, and that it does not deal with
procedure alone but touches a substantive right. The submission is that in view of
cls.(c), (d) and (e) of sub-s.(1) of s.8 of the Bengal General Clauses Act, 1899
which provide that if any law is repealed then unless a different intention appears,
the repeal shall not affect any liability incurred under any enactment so repealed
or affect any legal proceeding or remedy in respect of such liability, penalty or
punishment as aforesaid. It is said that there was a liability incurred by the
commission of an offence punishable under s.16(1)(a) of the Act as amended by
the West Bengal Amendment Act and s.8 of the Bengal General Clauses Act'
1899 preserved the continued operation of the repealed West Bengal Amendment
Act for imposition of that punishment. The contention is that where rights and
procedure are dealt with together by the repealing Act, then, intention of the
legislature is that the old rights are still to be determined by the old procedure. In
support of the contention, reliance is placed on the decision of the Sargant, J. in
reHale's Patent(1). We are afraid, the contention cannot prevail. Just as a person
accused of the commission of an offence has no right to trial by a particular court
or to a particular procedure, the prosecutor equally has no right to insist upon that
the accused be subjected to an enhanced punishment under the repealed Act. The
dictum of Sargant.J. in re Hale's Patent is therefore not applicable.
Whenever there is a repeal of an enactment, the consequences laid down in s.6 of
the General Clauses Act though it has been specifically mentioned in the
repealing Act or not, will follow, unless, as the section itself says, a different
intention appears. The question that falls for consideration in the appeal is
whether a "contrary intention" appears from the provisions of the Central
Amendment Act so as to exclude the applicability of s.8 of the Bengal General
Clauses Act. Anil Kumar Sen,J. in B. Manna's case, (supra), mentions several
reasons why the Central Amendment Act was not really intended to be
retrospective in operation so that it would not cover cases of offences committed
prior to the enactment itself. In the first place, he observes that the Central
Amendment Act had not expressly repealed the West Bengal Amendment Act
nor dealt with the Act or any of its provisions in any manner. It was enacted with
reference and having regard to the provisions of the Act as it stood before the
Central Amendment Act came into force. Even if the Central Amendment Act
had not expressly repealed the West Bengal Amendment Act, it would still be
repealed by necessary implication under Art. 254(1) as it conflicts with a later
law with respect to the same matter enacted by Parliament. In the premises, the
Central Amendment Act having dealt with the same offence as the one
punishable under s. 16(1)(a) and provided for a reduced punishment, the accused
must have the benefit of the reduced punishment. We wish to make it clear that
anything that we have said shall not be construed as giving to the Central
Amendment Act a retrospective operation insofar as it creates new offences or
provides for an enhanced punishment. In the result, the appeal must fail and is
dismissed

CHANDRA RANI V/S VIKRAM SINGH AND ORS

Article 254 of the Constitution of India Provides:

254(1) If any provision of a law made by the Legislature of a State is repugnant

to any provision of a law made by Parliament which Parliament is competent to
enact, or to any provision of any existing law with respect to one of the matters
enumerated in the concurrent list, then, subject to the provision of Clause (2), the
law made by Parliament, whether passed before or after the law made by the
Legislature of such State, or, as the case may be, the existing law, shall prevail
and the law made by the Legislature of the State shall, to the extent of the
repugnancy, be void.

(2) Where a law made by the Legislature of a State ... with respect to one of the
matters enumerated in the concurrent list contains any provision repugnant to
the provisions of an earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the Legislature of such State shall,
if it has been reserved for the consideration of the President and has received his
assent, prevail in that State.

The Central Act No. 104 of 1976 and the U.P. Act No. 57 of 1976 were enacted
in pursuance of Entry 13 of List III of the Constitution-Concurrent List. Clause
(1) of Article 254 of the Constitution says that if a State law relating to a
'concurrent subject' is repugnant to a Union Law relating to that subject, then,
whether the Union Law is prior or later in time, the Union Law will prevail and
State Law shall, to the extent of such repugnancy, be void. To this general rule
embodied in Clause (1), Clause (2) engrafts an exception viz. that if the President
assents to a State Law which has been reserved for his consideration, it will
prevail notwithstanding its repugnancy to an earlier law of the Union. The
principal Act as amended by Act No. 104 of 1976 did not contain any proviso to
Rule 2(2) is the First Schedule of Order XXXIX of the Code. On the other hand,
U.P. Act No. 57 of 1976 incorporated the following proviso therein.
provided that no such injunction shall be granted

(a) Where no perpetual injunction could be granted in view of the provisions of

Section 38 and Section 41 of the Specific Relief Act, 1963 (Act 47 of 1963), or

(b) to stay the operation of an order for transfer, suspension, reduction in rank,
compulsory retirement, dismissal, removal or otherwise termination of service of,
or taking charge from any employee including any employee of the Government,
or

(c) to stay, any disciplinary proceedings pending or intended, or the effect of any
adverse entry, against any employee of the Government, or

(d) to effect the internal management or affairs of, any educational institution
including a University, or a society or

(e) to restrain any election or

(f) to restrain, any auction intended to be made or, the effect of any auction made,
by the Government or

(g) to stay the proceedings for the recovery of any dues recoverable as land
revenue unless adequate security is furnished, or

(h) in any matter where a reference can be made to the chancellor of a University
under any enactment for the time being in force and any order for injunction
granted in contravention of these provisions shall be void.
FACTS
Plaintiffs had instituted a suit for a permanent injunction restraining the
Defendants from interfering with their rights to function as manager and member
of the duly constituted committee of the management of the college concerned.
An application for an interim order of injunction was also filed restraining the
Defendants in the same terms as in the suit itself. The learned Civil Judge,
Muzaffarnagar by his order dated 21-12-1976 rejected the application for interim
order of injunction, which order was challenged by the Plaintiffs in the First
Appeal From Order. In deciding this appeal this Court has to consider the
preliminary question as to whether the provisions of order XXXIX Rule 2 of the
Code as amended by U.P. Act No. 57 of 1976 would apply after coming into force
of the Central Act No. 104 of 1976.

ISSUE
Arguments, stated above, give rise to the following controversies:

(1) Whether the proviso introduced by U.P. Act 57 of 1976 stands repealed by
Section 97(1) of the Central Act 104 of 1976?

(2) Whether the proviso introduced by U.P. Act 57 of 1976 becomes void under
Article 254(1) of the Constitution being inconsistent with the provisions of the
Code of Civil Procedure after its amendment by Central Act 104 of 1976?

APPELLANT ARGUMENT
It was urged on behalf of the Appellants that the amendment to Order 39
introduced by U.P. Act No. 57 of 1976 stood abrogated as a consequence of Act
No. 104 of 1976 which came into force on a latter date and has consequently
superseded and repealed any amendments to the Code, introduced by the State
legislatures or by the High Courts as a consequence of Section 97(1) thereof being
repugnant to the provisions of the Code as amended by Act No. 104 of 1976. The
Bench before which the First Appeal From Order came up for hearing appears to
have been of the view that the rival contentions raised by the counsel for the
parties involved consideration of the vital question as to whether there was any
repugnancy or inconsistency between the two Acts, and if so, which of the two
amendments introduced by the respective legislatures should prevail in different
cases as they arise before courts of law. The questions which in the opinion of the
Bench arose for consideration were of fundamental importance on which an
authoritative decision by this Court is called for in order to furnish guidance to
the subordinate judiciary. It consequently directed the papers of the case to be
laid before the Hon'ble the Chief Justice for constitution of a larger Bench for the
decision of the same.

APPLICANT ARGUMENT
The main contention of the counsel for the applicant was that since Order XV
Rule 5 Code of Civil Procedure as amended by U.P. Act 57 of 1976 is repugnant
to Section 97(1) of Central Act 104 of 1976, the former was liable to be declared
as invalid.
The argument advanced by the learned Counsel for the applicant in the civil
revision was that even if Rule 5 Order XV of the Code of Civil Procedure as
amended by U.P. Act 57 of 1976, is held to be valid, being not inconsistent with
the provisions of Central Act 104 of 1976 the provisions of the said Rule did not
apply to a Small Cause Court suit. Elaborating the argument, the learned Counsel
contended that since Order L, Rule 1 Clause (b) thereof provides that Order XV,
except so much of Rule 4 as provides for the pronouncing at once of judgment,
did not apply to Small Cause Courts, the provision of Rule 5 of Order XV should
also be deemed to have been excluded
Learned Counsel for the applicant thereafter referred to the provisions of Section
3 of the President's Act XIX of 1973 and urged that if the provisions of Rule 5 of
Order XV could be applied to the courts constituted under the Provincial Small
Cause Courts Act, as the amendment as made by Section 3 was not called for.
The submission made has no substance. It would be noticed that while giving the
reasons for the enactment, the legislature laid down that the amendment made in
Order L of the First Schedule to the Code of Civil Procedure was only
clarificatory in nature. Being clarificatory, it must be understood to have a limited
function of explaining the ambiguity and should not be interpreted to mean that
but for that amendment the provisions of Rule 5 of Order XV could not apply to
the courts constituted under the Provincial Small Cause Courts Act. As already
stated above, its applicability depended on the fact whether the same was
mentioned in Rule 1 of Order L of the Code. Since this was not done, the
provisions of Rule 5 of Order XV would have applied, to the Small Cause Courts
without even an amendment made to the above effect The amendment was made
to ally groundless apprehensions.
Apart from the above, it may further be pointed out that by U.P. Act XXXVII of
1972, all suits between landlords and tenants have became cognizable by a Court
of Small Causes. Rule 5 of Order XV is a provision requiring a lessee to deposit
rent in the manner prescribed in that provision. The consequence of not making
a deposit in accordance with Rule 5 of Order XV is that defence of such a lessee
can be struck off. This amendment was made with a view to make it applicable
to all suite filed for ejectment by a lessor against a lessee. As stated above, by
U.P. Act XIII of 1972 all suits of the above nature have become cognizable by a
Judge of Small Causes. If the argument of the learned Counsel for the applicant
is accepted, the result would be that the provision of Rule 5 of Order XV would
become otiose. This could never be intended by the legislature. The intention
obviously was that the provisions of Rule 5 of Order XV should apply to the suits
which may be filed or were pending before the courts constituted under the
Provincial Small Cause Courts Act. The duty of a court is not to put an
interpretation of a provision which may defeat the purpose of an enactment. I,
therefore, find no substance in the submission of the learned Counsel for the
applicant

It was urged by counsel representing the other set of parties that as soon as the
Parliament or State Legislature had passed a Bill and it had received the assent of
the President or the Governor, as the case might be, it became a law for the
purposes of Article 254 of the Constitution. It was urged that U.P. Act No. 57 of
1976 having received the assent of the President on the 30th December, 1976 and
having been published in the U.P. Gazette, Extraordinary, on the 31st December,
1976, was a latter law since Act No. 104 of 1976 had already received the assent
of the President on the 9th September, 1976 a date anterior to 31st December,
1976.

Our Constitution is unique in the sense that while adopting a Federal form of
Government it has not only enumerated the matters in respect of which the Union
Parliament is alone entitled to make laws but has also provided for the matters in
respect of which the State Legislature has exclusive powers to make laws (List II
of Schedule VII of the Constitution) and also enumerates matters in respect of
which either of the two legislatures can enact laws (List III of Schedule VII of the
Constitution).
JUDGEMENT
The question of inconsistency of Order XV Rule 5 Code of Civil Procedure with
the Central Act had come up for decision before Hon. K.N. Goyal, J. in Civil
Revision No. 511 of 1978, M /s. India Finance Corporation v. Prem Shanker
Awasthi (decided on 15-9-1978). Brother Goyal held that Order XV Rule 5 Code
of Civil Procedure was not inconsistent with the Central Act. I am in complete
agreement with the view taken by him on this controversy. Section 97(1) of the
Central Act leaves the power of the State Legislature and the State High Courts
to amend the Code of Civil Procedure intact. This section does not lay down that
all the local amendments made by the State Government or the High Courts
would stand repealed. It only provides that only those local amendments would
stand nullified or repealed which were inconsistent with the Principal Act, as
amended by the Central Act. That apart even the power of High Court conferred
by Section 122 of the Code of Civil Procedure has been left untouched. In this
view of the matter, it is not possible to say that the Parliament intended to lay
down an exhaustive Code in respect of the subject matter replacing all provisions
of State legislations made on the Code of Civil Procedure as well as High Court's
amendments. As observed above, Section 97(1) will apply only where the
amendments were inconsistent and not those which were inconsistent.
For the reasons given above, I answer both the questions in the negative, and hold
that neither Rule 5 of Order XV amended by U.P. Civil Laws (Amendment) Act,
1972, nor Rule 5 of Order XV substituted by Section 7 of U.P. Civil Laws
(Reforms and Amendment) Act, 1976, is inconsistent with the provisions of the
Principal Act as amended by the Central Civil Procedure Code (Amendment) Act,
1976. It is also held that Section 97(1) and (3), of the Central Civil Procedure and
(Amendment) Act, 1976, are not retrospective and orders striking off the defence
before 1-2-1977 are not liable to be set aside.
DOCTRINE OF REPUGNANCY

The relevant provisions for the purpose of solving questions of repugnancy

between a Central and a State law is Article 254 of the Constitution. According
to Clause (1) of Article 254, if any provision of a State law is repugnant to a
provision in law made by Parliament which it is competent to enact or to any
existing law with respect to or matter in Concurrent List then the parliamentary
or existing law prevails over the State law, and it does not matter whether the
parliamentary law has been enacted before or after the State law.

To the extent of repugnancy, it will be void. Clause (2) of Article 254 provides
that where a law made by a State Legislature with respect to a matter in the
Concurrent List contains any provisions repugnant to the provisions of an
earlier parliamentary law or existing law with respect to that matter, then the
State law will prevail in the State provided it has been reserved for the
President’s consideration and has received his assent.

This clause is an exception to the general rule embodied to the clause (1) of
Article 254 as detailed above. A proviso to clause (2) provides that nothing in
clause (2) shall prevent Parliament from enacting at any time any law with
respect to the same matter including a law adding to, amending, varying or
respecting the law so made by the State Legislature.

In M. Kamnanidhi vs. Union of India, AIR 1979 S.C. 898. Fazal All. J. of the
Supreme Court had analysed all earlier decisions and summarised the test of
repugnancy. According to him a repugnancy would arise between the two
statutes of the State and the Union in the following situations:

(1) It must be shown that there is clear and direct inconsistency between the two
enactments (Union Act and State Act) which is irreconcilable, so that they
cannot stand together or operate in the same field.

(2) There can be no repeal by implication unless the inconsistency appears on

the face of the two statutes.

3) Where the two statutes occupy a particular field, but there is room or
possibility of both the statutes operating in the same field without coming into
collision with each other, no repugnancy results.
(4) Where there is no inconsistency but the statute occupying the same field
seeks, to create distinct and separate offences, no question of repugnancy arises
and both the statutes continue to operate in the same field.

The above rule of repugnancy is however subject to the exception provided in

clause (2) of Article 254, which has been discussed above.