http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: ZAVERBHAI AMAIDAS

       Vs.

RESPONDENT: THE STATE OF BOMBAY.

DATE OF JUDGMENT: 08/10/1954

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. JAGANNADHADAS, B.

CITATION:  1954 AIR  752            1955 SCR  799  CITATOR INFO :  RF         1956 SC 676  (39)  F          1957 SC 458  (20)  R          1959 SC 648  (29)  RF         1967 SC1091  (11)  R          1979 SC 898  (28)  F          1983 SC 150  (16)  R          1983 SC1019  (66)  R          1985 SC1729  (10)  R          1987 SC1837  (33,35)  R          1988 SC1708  (24)  R          1990 SC 104  (11)  F          1990 SC 548  (14)  RF         1990 SC2072  (14,46)

ACT: Constitution of India, Art. 254(2), Government of India Act, 1935,   s.  107(2)-Principle   embodied   therein--Essential Supplies  (Temporary  Powers)  Act (XXIV of 1946)  s.  7  as amended  by Act LII of 1950-Bombay Act XXXVI of  1947-S.  2- Subject matter of legislation identical-Repugnancy-Repeal by necessary intendment.

HEADNOTE: Article  254(2)  of  the Constitution is,  in  substance,  a reproduction  of s. 107(2) of the Government of  India  Act, 1935,  the concluding portion whereof is incorporated  in  a proviso  with  further additions.   The  principle  embodied therein is that when there is legislation covering the  same ground  both  by the Centre and by the State, both  of  them being  competent  to enact the same, the law of  the  Centre should prevail over that of the State. Section 7 of the Essential Supplies (Temporary Powers)  Act, 1946, was amended in 1948 and 1949 and thereafter by Act LII of 1950. Held,  that Act LII of 1950 is a legislation in  respect  of the  same matter as Bombay Act (XXX VI of 1947)  within  the meaning of Art. 254(2) of the Constitution and therefore  s. 2 of Bombay Act XXXVI of 1947 cannot prevail as against s. 7 of the Essential Supplies (Temporary Powers) Act as  amended by Act LII of 1950.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

It  is a well-settled rule of construction that if  a  later statute  again describes an off once created by  a  previous one  and  imposes  a  different  punishment  or  varies  the procedure,  the  earlier statute is repealed  by  the  later statute. Attorniey-Geneeral  for Ontario v. Attorney-General for  the Dominion  [1896]  A.C. 348, Smith v. Benabo [1937]  1.  K.B. 518,  and Michell v. Brown (I El. & El. 267,  274)  referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 31  of 1953. Under  article 132(1) of the Constitution of India from  the Judgment  and  Order dated 20-1-1953 of the  High  Court  of Judicature  at Bombay in Criminal Revision  Application  No. 642 of 1952, 800 1.   C.  Dalal and P. K. Chatterjee for the appellant. M.   C.  Setalvad, Attorney-General of India (P.   A.  Mehta and P. G. Gokhale, with him) for the respondent. 1954.  October 8. The Judgment of the Court was delivered by VENKATARAMA AYYAR J.-This is an appeal against the  judgment of  the High Court of Bombay dismissing a revision  petition filed by the appellant against his conviction under  section 7 of the Essential Supplies (Temporary Powers) Act No.  XXIV of 1946. The  charge  against the appellant was that  on  6th  April, 1951, he had transported 15 maunds of juwar from his village of  Khanjroli  to Mandvi without a permit, and  had  thereby contravened   section  5(1)  of  the  Bombay   Food   Grains (Regulation of Movement and Sale) Order, 1949.  The Resident First  Class Magistrate of Bardoli who tried the case  found him  guilty,  and  sentenced him to  imprisonment  till  the rising  of the Court and a fine of Rs. 500.  The  conviction and  sentence  were  both affirmed by  the  Sessions  Judge, Surat,  on  appeal.  The appellant thereafter  took  up  the matter  in revision to the High Court of Bombay,  and  there for  the  first time, took the objection that  the  Resident First Class Magistrate had no jurisdiction to try the  case, because under section 2 of the Bombay Act No. XXXVI of  1947 the  offence was punishable with imprisonment,  which  might extend to seven years, and under the Second Schedule to  the Criminal Procedure Code, it was only the Sessions Court that had  jurisdiction  to try such offence.  The answer  of  the State  to  this  contention  was  that  subsequent  to   the enactment of the Bombay Act No. XXXVI of 1947, the Essential Supplies  (Temporary Powers) Act bad  undergone  substantial alterations,  and was finally recast by the Central Act  No. LII  of 1950; that the effect of these amendments  was  that Act  No.  XXXVI  of 1947 had become  inoperative,  that  the governing  Act  was Act No. LII of 1950, and that  as  under that  Act the maximum sentence for the offence  in  question was  three  years, the Resident First Class  Magistrate  had jurisdiction over the offence. 801 The  revision  petition was heard by a Bench  consisting  of Bavdekar  and Chainani JJ.  Bavdekar J. was of  the  opinion that  the  amendments to the Essential  Supplies  (Temporary Powers)  Act including the re-enactment of section 7 in  Act No.  LII of 1950 did not trench on the field covered by  the Bombay  Act  No. XXXVI of 1947, which  accordingly  remained unaffected  by them.  Chainani J., on the other  hand,  held

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

that  both  Act No. XXXVI of 1947 and Act No.  LII  of  1950 related to the same subject-matter, and that as Act No.  LII of  1950  was  a Central legislation of  a  later  date,  it prevailed  over the Bombay Act No. XXXVI of 1947.   On  this difference of opinion, the matter came up under section 429, Criminal  Procedure Code, for hearing before Chagla  C.  J., who  agreed  with  Chainani J,  that  there  was  repugnancy between  section 7 of Act No. LII of 1950 and section  2  of the  Bombay  Act No. XXXVI of 1947, and that  under  article 254(2), the former prevailed ; and the revision petition was accordingly  dismissed.  Against this judgment, the  present appeal has been preferred on a certificate under article 132 (1),   and   the   point  for   determination   is   whether contravention  of  section 5(1) of the  Bombay  Food  Grains (Regulation of Movement and Sale) Order, 1949, is punishable under  section  2 of the Bombay Act No. XXXVI  of  1947,  in which case the trial by the Resident First Class  Magistrate would be without jurisdiction ; or whether it is  punishable under section 7 of the Essential Supplies (Temporary Powers) Act,  as amended by Act No. LII of 1950, in which case,  the trial  and  conviction of the appellant by  that  Magistrate would be perfectly legal. It  is now necessary to refer in chronological  sequence  to the  statutes  bearing on the question.  We start  with  the Essential  Supplies (Temporary Powers) Act No. XXIV of  1946 enacted  by the Central Legislature by virtue of the  powers conferred  on  it by 9 and 10, George VI,  Chapter  39.   It applied to the whole of British India.  Section 3 of the Act conferred  power on the Central Government to  issue  orders for  regulating the production, supply and  distribution  of essential commodities, and under section 4, this power could be 802 delegated  to  the  Provincial  Government.   Section   7(1) provided  for punishment for contravention of orders  issued under the Act, and ran as follows: "If  any person contravenes any order made under section  3, he  shall be punishable with imprisonment for a  term  which may extend to three years or with fine or with both, and  if the  order so provides any Court trying  such  contravention may  direct that any property in respect of which the  Court is  satisfied that the order has been contravened  shall  be forfeited to His Majesty: Provided  that  where  the  contravention  is  of  an  order relating  to foodstuffs which contains an express  provision in this behalf, the Court shall make such direction,  unless for reasons to be recorded in writing it is of opinion  that the direction should not be made in respect of the whole  or as the case may be, a part of the property." The  State of Bombay considered that the maximum  punishment of  three years’ imprisonment provided in the above  section was  not adequate for offences under the Act, and  with  the object of enhancing the punishment provided therein, enacted Act  No. XXXVI of 1947.  Section 2 of the said Act  provided (omitting what is not material for the present purpose) that "Notwithstanding   anything  contained  in   the   Essential Supplies  (Temporary Powers) Act, 1946, whoever  contravenes an  order made or deemed to be made under section 3  of  the said  Act  shall  be punished with  imprisonment  which  may extend to seven years, but shall not, except for reasons  to be  recorded in writing, be less than six months, and  shall also be liable to fine." This section is avowedly  repugnant to section 7(1) of the Essential Supplies (Temporary Powers) Act.  Section 107 (2) of the Government of India Act,  which was the Constitution Act then in force, enacted that,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

"Where  a Provincial law with respect to one of the  matters enumerated  in the Concurrent Legislative List contains  any provision repugnant to the provisions of an earlier Dominion law or an existing law with respect to that matter, then, if the   Provincial   law   having  been   reserved   for   the consideration  of  the  Governor-General  has  received  the assent of the Governor-General, 803 the  Provincial  law  shall in that  Province  prevail,  but nevertheless the Dominion Legislature may at any time  enact further legislation -with respect to the same matter.  " On  the footing that the subject-matter of Act No. XXXVI  of 1947 fell within the Concurrent List, the Bombay  Government obtained  the assent of the Governor-General  therefor,  and thereafter  it came into force on 25th November, 1947.   The position  therefore was that by reason of section 107(2)  of the Government of India Act, Act No. XXXVI of 1947 prevailed in   Bombay  over  section  7  of  the  Essential   Supplies (Temporary Powers) Act; but at the same time, it was subject under that section to all and any "further legislation  with respect  to the same matter", that might be enacted  by  the Central Legislature. The  contention of the State is that there was such  further legislation by the Central Legislature in 1948, in 1949  and again  in  1950, and that as a result of  such  legislation, section  2  of the Bombay Act No. XXXVI of 1947  had  become inoperative.   In  1948  there  was  an  amendment  of   the Essential  Supplies  (Temporary  Powers)  Act,  whereby  the proviso  to  section  7(1) was repealed and  a  new  proviso substituted, which provided inter alia that, "  Where  the  contravention  is of  an  order  relating  to foodstuffs  which  contains  an express  provision  in  this behalf, the Court shall direct that any property in  respect of  which the order has been contravened shall be  forfeited to His Majesty, unless for reasons to be recorded in writing it  is of opinion that the direction should be made  not  in respect  of the whole, or as the case may be, a part of  the property.  " The  Essential  Supplies (Temporary Powers)  Act  was  again amended  in  1949.   Under this amendment,  the  proviso  to section  7(i) was repealed, and a new clause substituted  in the following terms: "  (b)  Where the contravention is of an order  relating  to foodstuffs,   the  Court  shall  (i)  sentence  any   person convicted  of such contravention to imprisonment for a  term which may extend to three years and may, in addition, impose a sentence of fine, unless for 804 reasons to be recorded, it is of opinion that a sentence  of fine only will meet the ends of justice; and (ii)direct  that any property in respect of which the  order has been contravened or a part thereof shall be forfeited to His  Majesty,  unless for reasons to be recorded  it  is  of opinion  that such direction is not necessary to be made  in respect of the whole, or, as the case may be, a part of  the property.  " Then  came Central Act No. LII of 1950, under which the  old section  7  was repealed and a new section  enacted  in  the following terms: "  (1) If any person contravenes any order under  section  3 relating  to  cotton textiles he shall  be  punishable  with imprisonment for a term which may extend to three years  and shall also be liable to fine; and any property in respect of which the order has been contravened or such part thereof as to  the  Court  may  seem fit  shall  be  forfeited  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

Government. (2)If  any  person  contravenes any order  under  section  3 relating to foodstuffs,-- (a)he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to  fine, unless  for reasons to be recorded the Court is  of  opinion that a sentence of fine only will meet the ends of justice ; and (b)any  property  in  respect of which the  order  has  been contravened  or such part thereof as to the Court  may  seem fit shall be forfeited to the Government, unless for reasons to  be  recorded  the Court is of opinion  that  it  is  not necessary  to direct forfeiture in respect of the whole  or, as the case may be, any part of the property: Provided  that  where  the  contravention  is  of  an  order prescribing  the maximum quantity of any foodgrain that  may lawfully be possessed by any person or class of persons, and the  person contravening the order is found to have been  in possession   of  foodgrains  exceeding  twice  the   maximum quantity so prescribed, the Court shall- (a)sentence him to imprisonment for a term which may  extend to seven years and to a fine not less than 805 twenty  times  the  value  of the  foodgrain  found  in  his possession, and (b)direct that the whole of such foodgrain in excess of  the prescribed quantity shall be forfeited to the Government. Explanation:-A person in possession of foodgrain which  does not exceed by more than five maunds the maximum quantity  so prescribed  shall not be deemed to be guilty of  an  offence punishable under the proviso to this sub-section. (3)If  any  person  contravenes any order  under  section  3 relating  to  any  essential  commodity  other  than  cotton textiles  and  food-stuffs,  he  shall  be  punishable  with imprisonment for a term which may extend to three years,  or with  fine or with both, and if the order so  provides,  any property in respect of which the Court is satisfied that the order   has  been  contravened  may  be  forfeited  to   the Government. (4)If  any  person to whom a direction is given  under  sub- section (4) of section 3 fails to comply with the direction, he  shall be punishable with imprisonment for a  term  which may extend to three years, or with fine, or with both." It  must be mentioned that while the amendments of 1948  and 1949  were  made when section 107(2) of  the  Government  of India  Act was in force, the Constitution of India  Act  had come  into operation, when Act No. LII of 1950 was  enacted. Article 254(2) of the Constitution is as follows: "  Where a law made by the Legislature of a State  specified in  Part A or Part B of the First Schedule 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 : Provided   that  nothing  in  this  clause   shall   prevent Parliament from enacting at any time any law with 806 respect  to  the  same matter including  a  law  adding  to, amending,  varying  or  repealing the law  so  made  by  the Legislature of the State." This  is, in substance, a reproduction of section 107(2)  of the Government of India Act, the concluding portion  thereof

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

being  incorporated  in a proviso  with  further  additions. Discussing   the  nature  of  the  power  of  the   Dominion Legislature,  Canada, in relation to that of the  Provincial Legislature,  in a situation similar to that  under  section 107(2)  of the Government of India Act, it was  observed  by Lord  Was on in Attorney-General for Ontario  v.  Attornery- General  for the Dominion(1), that though a law  enacted  by the  Parliament  of Canada and within its  competence  would override Provincial legislation covering the same field, the Dominion Parliament bad no authority conferred upon it under the  Constitution to enact a statute repealing directly  any Provincial  statute.   That would appear to  have  been  the position under section 107(2) of the Government of India Act with  reference to the subjects mentioned in the  Concurrent List.    Now,   by  the  proviso  to  article   254(2)   the Constitution  has  enlarged the powers  of  Parliament,  and under  that  proviso,  Parliament can do  what  the  Central Legislature could not under section 107(2) of the Government of  India Act, and enact a law adding to, amending,  varying or repealing a law of the State, when it relates to a matter mentioned in the Concurrent List.  The position then is that under  the  Constitution Parliament can,  acting  under  the proviso to article 254(2), repeal a State law.  But where it does  not expressly do so, even then, the State law will  be void under that provision if it conflicts with a later  "law with  respect  to the same matter" that may  be  enacted  by Parliament. In  the  present case, there was no express  repeal  of  the Bombay Act by Act No. LII of 1950 in terms of the proviso to article  254(2).   Then the only question to be  decided  is whether  the  amendments  made  to  the  Essential  Supplies (Temporary  Powers) Act by the Central Legislature in  1948, 1949 and 1950 are "furthers (1)  [1896] A.C. 348. 807 legislation" falling within section 107(2) of the Government of  India  Act  or "law with respect  to  the  same  matter" falling  within  article  254(2).  The  important  thing  to consider  with  reference to this provision is  whether  the legislation is "in respect of the same matter." If the later legislation  deals  not with the matters  which  formed  the subject  of  the  earlier legislation  but  with  other  and distinct  matters though of a cognate and allied  character, then article 254(2) will have no application.  The principle embodied  in section 107(2) and article 254(2) is that  when there  is legislation covering the same ground both  by  the Centre and by the Province, both of them being competent  to enact  the same, the law of the Centre should  prevail  over that of the State. Considering  the  matter  from this  standpoint,  the  first question  to be asked is, what is the subject-matter of  the Bombay Act No. XXXVI of 1947?  The preamble recites that  it was  "to  provide  for  the  enhancement  of  penalties  for contravention  of orders made under the  Essential  Supplies (Temporary  Powers) Act, 1946." Then the next  question  is, what  is  the scope of the subsequent legislation  in  1948, 1949  and 1950 ? As the offence for which the appellant  has been convicted was committed on 6th April, 1951, it would be sufficient for the purpose of the present appeal to consider the  effect  of Act No. LII of 1950, which was in  force  on that  date.   By  that Act, section 7(1)  of  the  Essential Supplies  (Temporary  Powers) Act as passed in 1946  and  as amended  in 1948 and 1949 was repealed, and in its place,  a new section was substituted.  The scheme of that section  is that for purposes of punishment, offences under the Act  are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

grouped  under  three categories-,those relating  to  cotton textiles,  those relating to foodstuffs, and those  relating to essential commodities other than textiles or  foodstuffs. The punishments’ to be imposed in the several categories are separately  specified.   With reference to  foodstuffs,  the punishment  that could be awarded when the offence  consists in  possession  of foodgrains exceeding  twice  the  maximum prescribed is imprisonment for a term 808 which may extend to seven years, with further provisions for fine  and  forfeiture of the commodities.  In  other  cases, there  is the lesser punishment of imprisonment,  which  may extend  to three years.  Section 7 is thus  a  comprehensive code  covering the entire field of punishment  for  offences under  the Act, graded according to the commodities  and  to the  character  of  the offence.  The  subject  of  enhanced punishment  that is dealt with in Act No. XXXVI of  1947  is also  comprised  in  Act No. LII of  1950,  the  same  being limited  to  the case of hoarding of  foodgrains.   We  are, therefore, entirely in agreement with the opinion of  Chagla C.J.  and  Chainani  J.  that  Act No.  LII  of  1950  is  a legislation  in respect of the same matter as Act No.  XXXVI of 1947. Bavdekar  J. who came to the contrary  conclusion  observed, a-.id  quite correctly, that to establish  repugnancy  under section  107(2) of the Government of India Act, it  was  not necessary  that  one legislation should say  "do"  what  the other  legislation says "don’t", and that  repugnancy  might result  when both the legislations covered the  same  field. But  he took the view that the question of enhanced  penalty under Act No. XXXVI of 1947 was a matter different from that of  punishment  under  the  Essential  Supplies   (Temporary Powers)  Act,  and as there was legislation  in  respect  of enhanced  penalty  only when the offence was  possession  of foodstuffs  in excess of twice the prescribed quantity,  the subject-matter  of Act No. XXXVI of 1947 remained  untouched by  Act  No. LII of 1950 in respect of  other  matters.   In other  words,  he considered that the question  of  enhanced punishment  under  Act  No.  XXXVI  of  1947  was  a  matter different  from that of mere punishment under the  Essential Supplies  (Temporary Powers) Act and its amendments; and  in this, with respect, he fell into an error.  The question  of punishment  for contravention of orders under the  Essential Supplies (Temporary Powers) Act both under Act No. XXXVI  of 1947  and  under Act No. LII of 1950  constitutes  a  single subject.  matter  and  cannot  be split  up  in  the  manner suggested by the learned Judge.  On this principle rests the rule 809 of   construction  relating  to  statutes  that  "when   the punishment or penalty is altered in degree but not in  kind, the  later provision would be considered as superseding  the earlier  one." (Maxwell on Interpretation of Statutes,  10th Edition, pages 187 and 188).  "It is a well settled rule  of construction",  observed Goddard J. in Smith  v.  Benabo(1), "that if a later statute again describes an offence  created by  a previous one, and imposes a different  punishment,  or varies the procedure, the earlier statute is repealed by the later statute: see Michell v.Brown(2), per Lord Campbell." It is true, as already pointed out, that on a question under article 254(1) whether an Act of Parliament prevails against a  law of the State, no question of repeal arises;  but  the principle on which the rule of implied repeal rests, namely, that  if  the  subject-matter of the  later  legislation  is identical with that of the earlier, so that they cannot both

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

stand  together, then the earlier is repealed by  the  later enactment,  will be equally applicable to a  question  under article 254(2) whether the further legislation by Parliament is  in respect of the same matter as that of the State  law. We  must accordingly hold that section 2 of Bombay  Act  No. XXXVI  of  1947 cannot prevail as against section 7  of  the Essential  Supplies (Temporary Powers) Act No. XXIV of  1946 as amended by Act No. LII of 1950. The appellant also sought to argue that the subjectmatter of the legislation in Act No. XXXVI of 1947 was exclusively  in the  Provincial  List,  and  that  section  107(2)  of   the Government   of  India  Act  and  article  254(2)   of   the Constitution which apply only with reference to  legislation on  subjects  which  are in the  Concurrent  List,  have  no application.   The very legislation on which  the  appellant relies,  viz., Act No. XXXVI of 1947, proceeds,  as  already stated,  on  the  basis that the subject-matter  is  in  the Concurrent List.  The appellant raised this question  before the  learned  Judges  of the Bombay  High  Court,  and  they rejected it.  In the application for, leave to appeal to (1)  [1937]1 K.B. 5I8. (2)  1 El. and El. 267,274. 810 this  Court  which was presented under article  132(1),  the only ground that was put forward as involving a  substantial question  as to the interpretation of the Constitution  was, whether  the Bombay Act No. XXXVI of 1947 was repugnant  and void  under  article  254 of  the  Constitution.   No  other question having been raised in the petition, we must decline to permit the appellant to raise this point. In the result, the appeal fails and is dismissed. Appeal dismissed.