# STATE OF ORISSA v. M.A. TULLOCH AND CO. ~

- **Citation:** [1964] 4 S.C.R. 461
- **Court:** Supreme Court of India
- **Decided:** 1963-08-16
- **Bench:** B. P. Sinha C. J, K. SuBBA RAo, Raghubar Dayal, N. Rajagopala Ayyangar, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-orissa-v-m-a-tulloch-and-co-3165
- **Pages:** 24

## Headnote

Constitution of India-Sta.te legislation
under Seventh Sche~
dule, l~ist If, entry 23-Union Legislation u11der List !, entry 54EjJect of Union legislation-General Clauses ,-1ct, s. 6, meaning
af 'repeal'-Orissa Mining Areas Development
Fund
Act, 1952
(XXV!l of 1952), ss. 4. 5-Mines and Minerals (Regulation and
Development) Act, 1957 (67 of 1957), s. 18(1)(2)-General
Clauses
Act,
1897 (10
of
1897)
s. 6-Constitution of India,
.1rt. 246(1 ), Seventh Schedule, List ll, Entry 23, List I, Entry 54.
()n a lease granted by the appellant under the Central Act 53
ol 1948 the Respondent Tulloch & Co. \Vas \vorking a manganese
1nine.
~fhe State Legislature
of Orissa, then passed the Orissa
]vfining .-'\seas Developn1ent F un<l Act, 1952 whcreunder the State
{;overn1nent v.1as empo\vered to levy a fee being intended for the
developn1ent of the "mining areas" in the State.
After bringing
these provisions into operation, the appellant made demands on
the respondent on August 1, 1960 for payn1ent of the fees due
for the period July, 1957 to March, 1958.
The respondent then,
challenged the legality of the said demand before the High Court
under .'\rt. 226 of the Constitution. The writ petition \Vas allowed on
the ground that on the coming into force of the Central Act, 1957
(Act 67 of 1957), as and from June I, 1958, the Orissa Act should
he deen1eJ to be non-existent for eYery purpose.
Thereafter, the
appellant 1nade an application to the High Court to review its
1u<lgn1ent on the ground that even if the Orissa Act of 1952 \Vas
superseded by Central Act 67 of 1957, the liabilities which had
accrued to the State prior to June l, 1958 could not be dee1ned
to he \viped out because the Central Act \Vas not retrospective. This
application \vas dismissed.
It \Vas urged on behalf of the State,
intl·r alia, that the supersession of the Orissa Act by the Central
Act \Vas neither n1ore nor less than a
repeal.
If it thus \Vas a
repeal. then s. 6 of the General Clauses ;\ct, 1897 'vas attracted.
Held, (1) that since the Central Act 67 of 1957 contains the
rtquisite declaration by the Union Parlia1nent under Entry 54 and
that ,.\ct covers the san1e field as the :\ct of 1948 in regard to
mines and mineral development,
the
decision of this Court in
1-fingir~Ranipur Coal Co. v. State of Orissa concludes this 1natter
unless there \Vere any material difference between the scope and
ambit of Central Act 53 of 1948 and that of the Act of 1957.
Besides, sub·ss. (l) and (2) of s. 18 of the Central Act of
l 917 are wider in scope and a111plitude and confer larger po\vers
on the (~entral Government than the corresponding proYisions of
the ,\ct of 1948:
1963
August 16
1963
State of Orissa
v.
M. A. Tulloch
and Co.
462
SUPREME COURT REPORTS
[1964]
Hi11gir-Rampur Coal Co. Ltd. v. State of Oris;a,
[1961 J
2 S. C. R. 53i, followe<l.
(2) that the test of t\VO legislations containing contradictory
provisions is not, hovvever, the only criterion of repugnancy, for
if a cotnpetent legislature with a superior efficacy expressly or impliedly eYinces by its legislation an intention to cover the whole
field, the enactments of the other legislature \vhether passed before
or after \Vould be overborne on the ground of repugnance. Where
such is the position the inconsistency is dcn1onstrated not by a
detailed comparison of provisions of the two statutes but by the
lnere existence of the two pieces of legislation.
Jn the present case, having regard to the terms of s. ] 8( 1) it
must he held that the intention of Parlian1ent \Vas to cover the
entire field and thus to leave no scope for the argu1nent that until
rules \Vere framed, there \Vas no inconsistency and no supersession
of the State Act;
Ch. Tika Ramji & Ors. v. State of Uttar Pradesh. [ 1956] S.C.R.
393, inapplicable.
(3) that if by reason of the declaration by Parliament the
entire suhject-tnatter of "conservation and develop1nent of n1inerals"
has been taken over, for being dealt \Vith by
Parlia1nent~ thus
depriving the Stat

## Text

_Characters 0–39,847 of 56,625. This is a partial read: ask again with offset=39847 for what follows._

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•
4 S.C.R.
SUPREME COURT REPORTS
461
STATE OF ORISSA
v.
M.A. TULLOCH AND CO.
~
(AND CONNECTED APPEAL)
)
(B. P. SINHA C. J., K. SuBBA RAo, RAGHUBAR DAYAL, N.
RAJAGOPALA AYYANGAR AND J. R. MuDHOLKAR, JJ.)
Constitution of India-Sta.te legislation
under Seventh Sche~
dule, l~ist If, entry 23-Union Legislation u11der List !, entry 54EjJect of Union legislation-General Clauses ,-1ct, s. 6, meaning
af 'repeal'-Orissa Mining Areas Development
Fund
Act, 1952
(XXV!l of 1952), ss. 4. 5-Mines and Minerals (Regulation and
Development) Act, 1957 (67 of 1957), s. 18(1)(2)-General
Clauses
Act,
1897 (10
of
1897)
s. 6-Constitution of India,
.1rt. 246(1 ), Seventh Schedule, List ll, Entry 23, List I, Entry 54.
()n a lease granted by the appellant under the Central Act 53
ol 1948 the Respondent Tulloch & Co. \Vas \vorking a manganese
1nine.
~fhe State Legislature
of Orissa, then passed the Orissa
]vfining .-'\seas Developn1ent F un<l Act, 1952 whcreunder the State
{;overn1nent v.1as empo\vered to levy a fee being intended for the
developn1ent of the "mining areas" in the State.
After bringing
these provisions into operation, the appellant made demands on
the respondent on August 1, 1960 for payn1ent of the fees due
for the period July, 1957 to March, 1958.
The respondent then,
challenged the legality of the said demand before the High Court
under .'\rt. 226 of the Constitution. The writ petition \Vas allowed on
the ground that on the coming into force of the Central Act, 1957
(Act 67 of 1957), as and from June I, 1958, the Orissa Act should
he deen1eJ to be non-existent for eYery purpose.
Thereafter, the
appellant 1nade an application to the High Court to review its
1u<lgn1ent on the ground that even if the Orissa Act of 1952 \Vas
superseded by Central Act 67 of 1957, the liabilities which had
accrued to the State prior to June l, 1958 could not be dee1ned
to he \viped out because the Central Act \Vas not retrospective. This
application \vas dismissed.
It \Vas urged on behalf of the State,
intl·r alia, that the supersession of the Orissa Act by the Central
Act \Vas neither n1ore nor less than a
repeal.
If it thus \Vas a
repeal. then s. 6 of the General Clauses ;\ct, 1897 'vas attracted.
Held, (1) that since the Central Act 67 of 1957 contains the
rtquisite declaration by the Union Parlia1nent under Entry 54 and
that ,.\ct covers the san1e field as the :\ct of 1948 in regard to
mines and mineral development,
the
decision of this Court in
1-fingir~Ranipur Coal Co. v. State of Orissa concludes this 1natter
unless there \Vere any material difference between the scope and
ambit of Central Act 53 of 1948 and that of the Act of 1957.
Besides, sub·ss. (l) and (2) of s. 18 of the Central Act of
l 917 are wider in scope and a111plitude and confer larger po\vers
on the (~entral Government than the corresponding proYisions of
the ,\ct of 1948:
1963
August 16
1963
State of Orissa
v.
M. A. Tulloch
and Co.
462
SUPREME COURT REPORTS
[1964]
Hi11gir-Rampur Coal Co. Ltd. v. State of Oris;a,
[1961 J
2 S. C. R. 53i, followe<l.
(2) that the test of t\VO legislations containing contradictory
provisions is not, hovvever, the only criterion of repugnancy, for
if a cotnpetent legislature with a superior efficacy expressly or impliedly eYinces by its legislation an intention to cover the whole
field, the enactments of the other legislature \vhether passed before
or after \Vould be overborne on the ground of repugnance. Where
such is the position the inconsistency is dcn1onstrated not by a
detailed comparison of provisions of the two statutes but by the
lnere existence of the two pieces of legislation.
Jn the present case, having regard to the terms of s. ] 8( 1) it
must he held that the intention of Parlian1ent \Vas to cover the
entire field and thus to leave no scope for the argu1nent that until
rules \Vere framed, there \Vas no inconsistency and no supersession
of the State Act;
Ch. Tika Ramji & Ors. v. State of Uttar Pradesh. [ 1956] S.C.R.
393, inapplicable.
(3) that if by reason of the declaration by Parliament the
entire suhject-tnatter of "conservation and develop1nent of n1inerals"
has been taken over, for being dealt \Vith by
Parlia1nent~ thus
depriving the State of the po"''er \Vithin it theretofore po<;sessed, it
\.vould folJo,v that the "n1atter" in the State L.ist is, to the extent
of the declaration, subtraced fron1 the scope and an1bit
of entry
23 of the State List.
There \vould, therefore, after the Central
Act of 195i, be "no tnatter in the List'' to 'vhich the fee could
be related in order to render it \1:ilid;
( 4) that a repeal may be brought about by repugnant legisl::ttion, \Vithout even any reference to the ,.\ct intended to be repealed, for once legislatiYe con1pctence to effe(t a repeal is posited, it
1natters little whether this is done expressly or inferentially or
by the enactn1ent of repugnant legislation.
V\'here an intention to effect a repeal is attributed to a lcgis~
laturc then the san1e \vould attract the incident of the saYing found
in s. 6 o( the General Clauses Act. If this \Vere the true position
about the effect of the Central Act, 67 of 195i as the liability
to pay the fee \vhich was the subject of the notices of the deman<l
had accrued prior to June 1, 1958 it would follow that these notices
\Vere valid and the a1nounts due thereunder c0uld be reco\'eret!
not\vithstanding the disappearance of the Orissa i\ct by virtue of
the superior legislation by the Union Parlia1ncnt.
Kcshava11 Madhava Menon v. State of Bombay, [1951] S.C.R.
228, Kay v. Goodwin, (1830) 6
Bing.
576, Surtees v. Ellison,
( 1829) 9 B & C 750 and Trust Mai Lac/uni Sialkoti Bradan· v.
The Chairtnan Amritsar ln1/Jrovement Trust and Ors. [19631 l
J....-""'
S.C.R. 242, referred to.
-
,
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•
4 S.C.R.
SCPREME COURT REPORTS
463
CML APPELLATE JuR1so1cnoN : Civil Appeals No. 561
and 562 of 1962.
Appeals from the judgment and order dated April 18,
1961, of the Orissa High Court in 0. J. Cs. Nos. 142 and
144 of 1960.
D. Narsara;u, Advocate-General for the State of Andhra
Pradesh, Ramdas, R. N. Saclzthey and P. D. Menon, for
the appellants (in both the appeals).
M. C. Setalvad, Ranadeb Chaudhuri, B. C. Sen, S. C.
Sen, S. N. Andley, Rameshwar Natlr and P. L. V hora for
the respondent (in C. A. No. 561 of 1962).
Ranadeb Chaudhuri, B. C. Sen, S. C. Sen, S. N. Andley,
Rameshwar Nath and P. L. Vohra, for the respondent (in
C. A. No. 562 of 1962).
P. Ram Reddy and R. Thiagarajan, for the Intervener.
August 16, 1963. The Judgment of the Court was delivered b)'
AvvA,,,-GAR 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 said notice of
demand.
The facts giving rise to these petitions were briefly
these.
There is not any material difference between the
1963
State of Orissa
...
M. A. Tulloch
and Co.
Avyangar f.
1963,
State of Orissa
v.
M. A. Tulloch
and Co.
Ayyangar /.
464 .
SUPREME COURT REPORTS
[19641
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) whereunder certain areas were constituted as
"mining areas" and under the powers conferred under that
enactment the State Government was empowered to levy a
fee on a percentage of the value of the mined ore at the
pit's mouth, the collections being intended for the development of the "mining areas" in the State. The necessary
steps for bringing these provisions into operation were taken
by the State Government who thereafter made demands
on the respondent on August 1, 1960 for the payment of
the said· fees. The present appeal is concerned with the
fees which became due for the period July, 1957 to March
1958.
When a demand was made for the sum the respondent filed petition 142 of 1%0 before the High Court
impugning the legality of the demand and claimed the
reliefs we have set out earlier. The learned Judges allowed
the Writ Petition and issued directions to the second appellant in terms of the prayer in the petition. As the
grounds on which the said demand of the fees was impugned raised substantial questions touching the interpretation of the Constitution the appellants applied to the Court·
for a certificate of fitness under Art. 132(1) and (2) and
this having been granted, the appeals are now before us. ·
We shall now proceed to set out briefly the grounds·
upon which the learned Judges of the High Court allowed
the petition of the respondents. Stated shoi:tly, the contention which the learned Judges of the High Court accepted was that the Orissa Act had been rendered ineffective or superseded by a Central enactment-The Miries
and Minerals (Regulation and Development) Act, 1957
(Act 67 of 1957), hereinafter called the Central Act, which
was brought into force as and from June 1, 1953. The
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..... __ _l
4 S.C.R.
SUPREME COURT REPORTS
465
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-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 els. (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 we are concerned in the present case with the State
power in the State field. The relevant clause in that context is cl. (3) of the Article which runs :
"Subject to clauses (1) and (2), the Legislature of any
l J63
State of Orissa
v.
Jf. A. Tulloch
and Co.
- ,.-•
. .
, .
'
. - ~ ·,
~--:;-.·-;., ::...<- -~
~-
·-.
-,\ 466'·
. SUPREME COURT REPORTS
11964]
"-: - '
'\'-
'.'
'1903 '.
\{' ..
. --
~.\'
s:ari: of. Oriss• ·
State: ... has exclusive power to 'make laws for such ,
Sate or any part thereof with respect to any of the
matters enumerated in List II in the Seventh Schedule
-- v:·-...
M. A. Tullodz
(in this Constitution referred to as the 'State List')."
.. Coming now to the Seventh Schedule, Entry 23 of_ the
State List vests. in the State Legislature power to enact laws
Ayy~ngar_J.
. on-the subject of 'regulation of mines and mineral developant! Co.
/
/ .
ment subject to the provisions of List I with respect to /
regulation and development under the control of the
~·. Union'. It would be seen that "subject" to the provisions
of List I the pgwer of the State to enact Legislation on the
topic of "mines and mineral development" is plenary. The
rclc:Vant· provision in List I is, as already noticed, Entry
54 of the Union List. It may be mentioned that this scheme -
. of the distribution of legislative power between the Centre
~and. the States is not new but is merely a continuation of
- the state of affairs which prevailed under the Government
of. India Act 1935 which included a provision on the Imes .
of Entry 54 of the Union List which then bO~e the num-
- her item 36 of the Federal List and an entry corresponding
to Entry 23 ·in the State List which boic the same number
in the Provincial· Legislative List. There is no controversy
that the 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 enactes 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 doc:S not need much argumCnt to realise that to the extent to which the Uni6n 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· =der. 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·
•-
·:i 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 Parl_iamerit is emPOwered to make and has made.
· ·
-
4 S.C.R.
SUPREME COURT REPORTS
467
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 of amenities like communications,
water-supply and electricity and "the better development of
areas wherein any mine was situated" as well as "to provide for the welfare of the residents or workers in any
such area within which persons employed in a mine or
group of mines reside or work". Section 4 is the provision
empowering the State Government to levy a cess or a fee
on all extracted minerals from any mines in "a mining
area" with a limit, however, that the rate of such levy
should not exceed 5 per cent of the value of the minerals
at the pit's mouth. The cess was to fall due quarterly
every year on 1st of January etc. and was to be computed
on the value of the mineral extracted during the three
months immediately preceding the dates specified. Section
5 makes provision for the constitution of the "Development
Fund" into which the cesses raised under s. 4 and other
moneys received in that behalf might be paid and the
section also specifies the purposes for which the Fund may
be utilised. These were :
"5 (5). Without prejudice to the generality of the foregoing provisions, the fund may be utilised to defray-
( a) the cost of measures for the benefit of labottr and
other persons residing or working in the mining
areas directed towards:-
1963
StRte of Orissa
v.
M. A. Tulloch
and Co.
Ayvangar f.
1963
Sta~ of Orissa
...
M. A. Tulloch
anti Co.
,fyyangar /.
468
~UPREME COURT REPORTS
[1964]
(i) the improvement of public health and sanitation, the prevention of disease, and the provision and improvement of medical facilities;
(ii) the provision and improvement of water-supplies and facilities 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 fonds, 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 are 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 mav be omitted. Sections 4 to 10
form a group headed 'Genera'! 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
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4 S.C.R.
SUPREME COURT REPORTS
469
of three sections-ss. 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 notification, to make rules for regulating the grant of prospecting licences and mining leases
in rqpect of minerals and for purposes connected therewith.
Sub-s. (2) specifies in particular the matters for which such
mks may provide and among them is head (i) reading:
"(i) The fixing and collection of dead rent, fines, fees
or other charges and the collection of royalties in respect of-
( i) prospecting licences,
(ii) mining leases,
(iii) minerals mined, quarried, excavated or collected".
Head (m) runs:
" ( m) the construction, maintenance and use of roads,
power transmission lines, tramways, railways,
aerial ropeways, pipelines and the making of passages for water for mining purposes on any land
comprised in a mining lease ;"
l'p to this point the Act was dealing with the first purpose viz., "the Regulation of mines." Section 18 is the
provision relating to the other object of the Act "The
Development of minerals." It would be necessary to set
out in some detail some of the terms of this section.
Section 18(1) enacts:
"18 (1). It shall be the· duty of the Central Government to take all such steps as may be necessary for the
conservation and development of minerals in India, and for that purpose the Central Government may,
by notification in the Official Gazette, make such rules
as it thinks fit."
and 18(2):
"18 (2). In particular, and without prejudice to the
generality of the foregoing power, such rules may pr<>-
vide for all or any of the following matters, namely:-
1963
Sut< of Orisslf
v.
M. A. Tulloch
and Co.
Ayy•ngar {.
1963
State of Orissa
v.
M. A. Tulloch
and Co.
Ayyang"r /.
470
(a)
(b)
(c)
(d)
SUPREME COURT REPORTS
[1964]
the development of mineral resources in any area;
Section 25 provides for the recov~ry 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 Centrnl 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 "mini11g areas''
while the Central Act was concerned not with any sucial
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 bv the two ehactments
and the "extent of control" which tl;e 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 therefore there was
iy
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4 S.C.R.
SUPREME COURT REPORTS
471
no question of the supersession of the State power under
item 66 of the State List by a Central enactment whose
source of legislative power is entry 96 of List I and therefore the demand for the fee competently enacted by the
State was not superseded by Central legislation even though
the latter was covered by Entry 54 of the Union List.
( 4) In any event, the Central Act was not retrospective or
retroactive and could not affect rights which accrued to
the State prior to June
1, 1958 on which date the
Central Act was brought into force.
The fees in regard
to which the demands impugned in the case were made
had accrued long prior to June 1, 1958 and the demands
would therefore be enforceable notwithstanding the disappearance of the State Act subsequent to the date of the
accrual of the fee.
On the other hand, Mr. Setalvad-learned Counsel for
the respondent-urged that the Central Act covered the
entire field of mineral development, tl1at being tl1e "extent"
to which Parliament had declared by law that it was expedient that the Union should assume control. In this connection he relie<l most strongly on the terms of s. 18(1)
which laid a duty upon the Central Government "to take
all such steps as may be necessary for the conservation
and development of minerals in India" and "for that purpose the Central Government may, by notification, make
such rules as it deems fit". If the entire field of mineral development 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 suggeste<l 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 ma<le 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 uires 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 scrutinv. We are, however, relieved from this
State of Orissa
v.
M. A. Tulloch
and Co.
1963
State of Oriss•
v.
M. A. Tt11loch
and Co.
Ayyanggr /.
472
SUPREME COURT .REPORTS
[1964]
task of detailed examination and discussion of this matter
because we consider that it is concluded by a decision of
this Court in Tlze Hingir-Rampur Coal Co. Ltd. & Ors. v.
The State of Orissa and Ors.('). 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-constitt1tion 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 Schedule
to the Constitution.
Before referring to the portion of the judgment dealing
with this aspect of the matter, it would be convenient to
refer to the Central Act of 1948 on the basis of which the
constitutional validity of the Orissa Act was impugned.
Central Act 53 of 1948 professes to be an Act to provide
for the regulation -of mines and oil fields and for the development of minerals. Section 2 of that Act contained a
declaration as we have in s. 2 of the present Central Act
67 of 1957 and this read:
"It is hereby declared that it is expedient in the public
interest that the Central Government should take under
its control the regulation of mines and oil fields and
the development of mines to the extent hereinafter
provided".
It is a very short enactment consisting only of 14 sections
of which it is only necessary to mention s. 6 which is
headed "Power to make Rules as respects mineral dc,,e-
(1) [ 1961 J 2 s.c.R: 537.
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4 S.C.R.
SUPREME COURT REPORTS
473
lopment" and this empowers the Central Government by
notification to make rules for "the conservation and development of minerals." By amendments effected in Central
Act 53 of 1948, by the later Act 67 of 1957, the provisions
which related to "mines and minerals" and their development and the references to "mines and minerals" in provisions common to them and to oil fields were excised,
so that thereafter while the earlier Act of 1948 was limited
to the development of oil-fields, the entire range of the
law relating 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 oilfields, 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 obscrYed:
"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 I. . . . . . . . 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 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 contaim 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 vires, not because
oi_ 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 compe31-2 SC lndia/64
1963
State of Orjssa
v.
M. A. Tulloch
and Co.
Ayyangar f.
1963
Stat~ of Orissa
v.
M. A. Tulloch
and Co.
Ayyangar /.
474
SUPREME COURT REPORTS
[1964]
tence 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 Deyelopment)
Act, I948, (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 expediency and control
by the Central Government.
It reads thus : ' ..... .
. . . . . . ' Section 4 of the Act provides that no mining
lease shall be granted after the commencement of this
Act otherwise than in accordance with the rules made
under this Act. Section 5 empowers the Central Government to make rules by notification for regulating
the grant of mining leases or for prohibiting the grant
of such leases in respect of any mineral or in any area
. . . . . . Section 6 of the Act, however, empowers the
Central Government to make rules by notification in
the official gazette for the con~ervation and development of minerals. Section 6(2) lays down several matters in respect of which rules can he framed by the
Central Government. . . . . . It is true that no rules have
in fact been framed by the Central Government in
regard to the levy and collection of any fees; but, in
our opinion, that would not make any diflerence. If
it is held that this Act contains the declaration referred
to in Entry 23 there would be no difficulty in holding
that the declaration covers the field of conservation and
development of minerals, a'iid the said field is indistinguishable from the field covered by the impugned
Act. What Entry 23 provides is that the legislative competence of the State Legislature is subject to the provisions of List I with respect to regulation and development under the control of the Union, and Entry 54 in
List I requires a declaration by Parliament 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 com-
~- .,.
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4 S.C.R.
SUPREME COURT REPORTS
475
petent 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 LUI of 1948."
It is only necessary to add that the validty 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 because what we are concerned
with is the power to levy a fee, and there is express pro-
".ision therefor in s. 13 of the Central Act of 1957 apart
from the implication arising from
s. 25
thereof, which
runs:
"25. Any rent, royalty, tax, fee or other sum due to the
Government under this Act or the rules made thereunder or under the terms and conditions of any pros1963
State of Orissa
v.
M. A. Tulloch
and Co.
Ayyangar /.
476
SUPREME COURT REPORTS
[1%4)
1963
State of Orissa
pecting licence or mining lease may, on a certificate
of such officer as may be specified by the State Government in this behalf by general or special order, be
recovered in the same manner· as ari arrear of land
revenue."
v.
M. A. Tulloc!i
and Co.
Ayyangar f.
We ought to add that besides we see considerable force
in Mr. Setalvad' s submission that sub-ss (1) & (2) of s. 18
of the Central Act of 1957 are wider in scope and amplitude and confer larger powers on the Central Government
than the corresponding provisions of the Act of 1948.
The second point urged by the appellant is based on
the fact that s. 18(1) of the Central Act merely lays a
duty on the Central Government "to take steps" for ensuring the conservation and development of the mineral
resources of the country and in that sense is not self-acting.
The submission is that even assuming that under the powers
conferred thereunder read in conjunction with s. 13 and
the other provisions in the Act, it would be competent
for the Central Government to frame rules on the lines
of the Orissa Act i.e., for the development of "mining
1 areas" and for that purpose to provide for the imposition
of fees and for the constitution of a fnnd 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 foll 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.(') and in particular on a passage at p. 432 reading:
"Even assuming that sugarcane was an article or cl~ss
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 posoibility of ~n order under section 18-G being·
issued by the Central Government would not be
enough. The existence of such an order would be the
essenti~I prerequisite before
~ny repugnancy could
. "
ever anse.
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4 S.C.R.
SUPREME COURT REPORTS
477
\Ve 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 Hmgir-Rampttr Coal Co. Ltd. & Ors. v. The State
of Orissa and Ors.(1) 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
rhe 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 enactment of one Legislature
has superiority over the other then to the extent of the
repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the I
other. The test of two legislations containing contradictory ·.
provisions is not, however, the only criterion of repugnancy,
for if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention
to cover the whole field, the enactments of the other legislature whether passed before or after would be overborne
on the ground of repugnance. Where such is the position,
the inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation. In the present case,
having regard to the terms of s.