# ZA VERBHAI AMAIDAS v. THE STATE OF BOMBAY

- **Citation:** [1955] 1 S.C.R. 799
- **Court:** Supreme Court of India
- **Decided:** 1953-01-21
- **Case number:** Criminal Appeal No. 31 of 1953
- **Bench:** Mehr Chand Mahajan C.J, MuKHERJEA, VIVIAN BosE, Jagannadhadas, Venkatarama Ayyar J
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/za-verbhai-amaidas-v-the-state-of-bombay-1202
- **Pages:** 12

## Headnote

799
""·
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 Lil
of 1950-Bombay Act XXXVI of
1947-S.2-Subiect matter of
legislation identical-Repugnancy-Repeal by necessary intendment.
Article 254(2) of the Constitution is, in substance, a reproduction of s. 107(2) of the Government of India Act, 1935, the conclud_.,
ing 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 (XXXVI of 1947) within the meaning
of Art. 254(2) of t~e 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.
It is a well-settled rule of construction 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is repealed by the later statute.
Attorney-Genernl
for
Ontario v.
Attorney-General
for the
Dominion [1896] A.C. 348, Smith v. Benabo [1937] 1 K.B. 518, and
Michell v. Brown (1 El. & EL 267, 274) referred to.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 31 of 1953.
Under article 132(1) of the
Constitution of India
from the
Judgment and Order dated 21-1-1953 of the
High Court of
Judicature
at
Bombay m
Criminal
Revision Application No. 642 of 1952.
13-88 SCindia/59.
1954
Oct1ber 8.
1954
z-bhai
Amaidas
v.
The Stale of
Bombay.
V enkatarama
Ayyar].
800
SUPREME COURT REPORTS
[1955]
I. 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 rev1s10n petition filed
by the appellant against his
conviction under
sect10n 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
villag.: 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 had undergone substantial alterations,
and was finally re-cast
by
the
Central
Act No. LU 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 Cl

## Text

-
S.C.R.
SUPREME COURT REPORTS
ZA VERBHAI AMAIDAS
v.
THE STATE OF BOMBAY
[MEHR CHAND MAHAJAN C.J., MuKHERJEA,
VIVIAN BosE, JAGANNADHADAS and
VENKATARAMA AYYAR J J.]
799
""·
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 Lil
of 1950-Bombay Act XXXVI of
1947-S.2-Subiect matter of
legislation identical-Repugnancy-Repeal by necessary intendment.
Article 254(2) of the Constitution is, in substance, a reproduction of s. 107(2) of the Government of India Act, 1935, the conclud_.,
ing 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 (XXXVI of 1947) within the meaning
of Art. 254(2) of t~e 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.
It is a well-settled rule of construction 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.
Attorney-Genernl
for
Ontario v.
Attorney-General
for the
Dominion [1896] A.C. 348, Smith v. Benabo [1937] 1 K.B. 518, and
Michell v. Brown (1 El. & EL 267, 274) referred to.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 31 of 1953.
Under article 132(1) of the
Constitution of India
from the
Judgment and Order dated 21-1-1953 of the
High Court of
Judicature
at
Bombay m
Criminal
Revision Application No. 642 of 1952.
13-88 SCindia/59.
1954
Oct1ber 8.
1954
z-bhai
Amaidas
v.
The Stale of
Bombay.
V enkatarama
Ayyar].
800
SUPREME COURT REPORTS
[1955]
I. 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 rev1s10n petition filed
by the appellant against his
conviction under
sect10n 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
villag.: 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 had undergone substantial alterations,
and was finally re-cast
by
the
Central
Act No. LU 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.
+
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•
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-
S.C.R.
SUPREME COURT REPORTS
801
The revision petition was heard by a Bench consisting
of Bavdekar and
Chainani JJ. Bavdekar J. was of the
opm10n 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 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
1s
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, m
which case,
the trial and
conv1ct10n
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
1954
Zav<rbhai
A maid as
v.
Tkt State of
Bombay.
Venkatarama
A,vyar J.
1954
Zaverhhai
Amaidas
v.
The Stale of
Bombay.
Venkatarama
AyyarJ.
802
SUPREME COURT REPORTS
11955]
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 sha 11
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
op1111on that the direction
should not be
made m
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 m
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 m 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,
"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 GovernorGeneral has received the assent of the Governor-General,
+
,.
,
-
-
-
S.C.R.
SUPREME COURT REPORTS
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
G9vernment
of India
Act, Act No. XXXVI of
1947 prevailed m
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, :me! 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 1s of an order relating
to foodstuffs which
contains an
express provision m
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
. agam 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
1s
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
1954
,(averbhai
Amaidas
v.
The State of
Bomhqy.
V enkatarama
Ayyar].
1954
.<;averbhai
Amai.das
v.
The State of
BombqJ.
Y enkatarama
4lY•• J.
804
SUPREME COURT REPORTS
[19551
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. Lil of 1950, under which
the old section
7 was
repealed
and a
new section
enacted in the following terms :
"(l) 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
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 foo<lgrain 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
execeeding 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
•
-
S.C.R.
SUPREME COURT REPORTS
805
twenty times the value of the foodgrain found in his
possession, and
(b) direct
that
the
whole of such food grain in
excess of the
prescribed quantity shall be forfeited to
the Government.
Explanation :-A person m 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 foodstuffs, 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
m the
Concurrent
List contains any provision repugnant to
the provisions of an earlier law made by
Parliament or
an existing law with respect td 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 111 that
State :
Provided that nothing in this
clause shall prevent
Parliament from enacting at any
time
any
law with
1954
Zaverbhai
Amaidas
v.
The State of
Bo,,.b07
V enkatrama
Ayyar J.
1954
Zavtrbhai
Amaidas
v.
The SJatt of
Bombay,
Venkatarama
Avor J.
806
SUPREME COURT REPORTS
fl955]
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
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
Waston in
AttorneyGeneral
for Ontario v.
Attorney-General
for
the
Dominion('), 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 had 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 w1der 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,
varymg
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
prov1s10n 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 "further
(1) [•896) A.G. 348.
•
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-
•
I
-·
-
,. .
S.C.R.
SUPREME COURT REPORTS
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
rnnvicted 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 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
1954
.<::averbhai
Amaidas.
v.
The State of
Bombay.
Venkatarama
Ayyar J.
1954
,Zaverbhai
Amaidas
v.
Tm Seot, of
Bombay.
V enkatwama
AJ!Y" J·
808
SUPREME COURT REPORTS
[1955]
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 imP,risonment, which may extend to three years.
Section 7 is
thus a comprehensive code covering the entire field of
punishmen~ 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. Lil of 1950, the same being limited to the
case
of hoarding
of foodgrains. We
~re, 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,
and
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 offellce
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 :ind 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 subjectmatter and cannot be split up in the manner suggested
by the learned Judge. On this principle rests the rule
-
•
-
S.C.R.
SUPREME COURT REPORTS
809
of construction relating
to
statutes
that "when the
punishment or
penal~y. is altered in degree but not in
kind,
the later
provmon
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
Gocldard 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 tl1e later legislation is identical
with
that
of the
earlier, so iliat they cannot both stand togeilier, 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 Qf 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] I K.B. 518.
(') I El. and El. 267, 27 4.
1954
.{.1J1Jerbhai
Amaidas
v.
Tiu State of
Bombay.
Venkatarama:
Ayyar J.
Z,avtrbhai
.Amoid0,1
..
Tht State of
Bombay.
V tnkatarama
AJ'1a1 J.
1954
•October28.
810
SUPREME COURT REPORTS
[1955]
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
nnder 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 resnlt, -the appeal fails and is dismissed.
Appeal dismissed.
INDIA UNITED MILLS LTD.
v.
COMMISSIONER
OF EXCESS
PROFITS
TAX, BOMBAY.
l_JvlEHR CHAND MAHAJAN C.J., S. R. DAs
GHULAM HASAN, BHAGWATI and
VENKATARAMA AYYAR JJ.]
Excw P,.ofits Tax Act (XV of 1940),
s.<. 15, 26(3)-Meaning
and i111port of the tvord 'discovers'-Allotvance granted to assessec on
his rcprese11tatio11-Sttbsequent
facts shotv that representation
as
untrue, Effect of.
The \Vord ·'discovers' in s. 15 of the Excess Profits Tax Act,
1940, is not limited to facts discovered, which existed during the
relevant chargeable accounting period for which assessment is reopened under the section
but also includes facts so discovered
which came into existence subsequent to such accounting period.
Allo\vance \Vas granted to an assessee by the Central Board of
Revenue under s. 26(3) of the 1\ct for the chargeable accounting
period during the \var on the ground that certain buildings, plant
and n1achinery provided for production of war materials will not
be required for the purposes of assessee's business after the terrn.i.-
nation of the war.
But it \Vas discovered that even after
the
termination of \Var the buildings, plant and machinery in question
\Vere actually used by the assessee for his business.
Held, that the Excess Profits Tax Officer had ample power to
proceed against the assessee to reassess him under s. 15 of the Act.
•
Dodwarth v. Dale ([1936] 2 K.B. 503: 20 Tax Cases 285);
·~
Anderton and Halstead Ltd. v. Birrell ([1932] 1 K.B. 271: 16 Tax
Cases 200) ; Gray (H.M. Inspector of Taxes) v. Lord Penrhyn (21
-