the State of Rajasthan v. Shri G. Chawla and Dr. Pohumal

Judgment

Httkui11 Chand l\1alhotta Union of India S. J(. Das ]. Decefnber z6. [1959] Supp. the appellant and that was the basis for the order of removal passed against him. For these reasons we hold that there is no merit in the appeal which must accordingly be dismissed with costs. Appeal dismissed. THE STATE OF RAJASTHAN SHRI G. CHAWLA AND DR. POHUMAL (S. R. DAS, c. J., s. K. DAS, P. B. GAJENDRAGADKAR K. N. WANCHOO and M. HIDAYATULLAH, JJ.) Legislative Competence-Validity of enactment-Control of Somid Amplifiers-Pith and sitbstance of fegislation-Ajmer (Sound Amplifiers Control) Act, I952 (Ajmer 3 of Ig53), s. 3-Govermnent of Part C States Act, I95I (49 of I95I), s. 2I-Conslit1<1ion of India, Sch. VII, List I, Entry JI, List II, Entries I, 6. The Ajmer (Sound Amplifiers Control) Act, 1952, was enacted by the Ajmer Legislative Assembly which, by s.

21 of the Government of Part C States Act, 1951, was empowered to make laws for the whole or any part of the State with respect to any of the matters enumerated in the State List or in the Concurrent List. The respondents were prosecuted under s. 3 of the Act for breach of the conditions of the permit granted for the use of sound amplifiers. On a reference under s. 432 of the Code of Criminal Procedure, the Judicial Commissioner of Ajmer held that the Act fell within Entry No. 31 of the Union List and not within Entry No. 6 of the State List as was claimed by the State, and, therefore, was ttltra vires the State Legislature. Held, that the pith and substance of the impugned Act was the control of the use of amplifiers in the interests of health and also tranquillity and thus the Act was substantially within the powers conferred by Entry No. 6 and conceivably Entry No. l of the State List, and did not fall within Entry No. 31 of the Union List, even though the amplifier, the use of which is regulated and controlled, is an apparatus for broadcasting or communication.

Accordingly, the Act was intra vires the State Legislature. (1) S.C.R. SUPREME COUH.T REPORTS CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1 of 1955. State of Rajasthan Appeal from the judgment and order dated October 13, 1954, of the former Judicial Commissioner's Court, Chawla Ajmer, in Criminal Reference No. 31 of 1954. H. J. Umrigar and T. M. Sen, for the appellant. The respondents did not appear. 1958. December 16. The Judgment of the Court was d.elivered by HIDAYATULLAH, J.-This appeal was preferred by Hidayatul/ah J. the State of Ajmer, but after the reorganisation of States, the State of Rajasthan stands substituted for the former State. It was filed against the decision of the Judicial Commissioner of Ajmer, who certified the case as fit ~or appeal to this Court under Art. 132 of the Constitution. The Ajmer Legislative Assembly enacted the Ajmer (Sound Amplifiers Control)

Act, 1952 (Ajmer 3 of l:l53), (hereinafter called the Act) which received the assent of the President on March 9, 1953. This Act was successfully impugned by the respondents before the learned Judicial Commissioner, who held that it was in excess of the powers conferred on the State Legislature under s. 21 of the Government of Part C States Act, 1951 (49 of 1951) and, therefore, ultra vires the State Legislature. The respondents (who were absent at the hearing) were prosecuted under s. 3 of the Act for breach of the first two conditions of the permit granted to the first respondent, to use sound amplifiers on May 15 and 16, 1954. These amplifiers, it was alleged against them, were so tuned as to be audible beyond 30 yards (condition "No. 1) and were placed at a height of more than 6 feet from the ground (condition No. 2). The second respondent was at the time of the breach, operating the sound amplifiers for the Sammelan, for which permission was obtained. On a reference under s.

432 of the Code of Criminal Procedure, the Judicial Commissioner of Ajmer held that tho pith and substance of the Act fell within !J06 [1959] Supp. Entry No. 31 of the Union List anc1 not within Entry S .-:-R . No. 6 of the State List, as was claimed by the State. late o; a;ast an Under Art. 246(4) of the Constitution, Parliament Chawla had power to make laws for any part of the territory of India not included in Part A or Hof the First Soho- J/idayatullah J. dule, notwithstanding that such matter was a matter enumerated in the State List. Section 21 of the Government of Part C States Act, 1951, enacted: "(1) Subject ~o the provisions of this Act, the I.cgislative Assembly of a State, may undertake laws for the whole or any part of the State with respPct tu any of the matters enumernte<l in t)rn State List or in the Concurrent List, (2)

Nothing in sub-section ( 1) shall derogate from the power conferred on Parliament by the Constitution to make laws with respect to any matter for a State or any part thereof." Under these provisions, the legislatfve competence of the State Legislature was confined to the two Lists other than the Union List. If, therefore, the subjectmatter of the Act falls substantially within an Entry in the Union List, the Act must be declared to be uuconstitutioual, but it is otherwise, if it falls substantially within the other two lists, since vrima f acie there is no question of repnguancy to a central statute or of an " occupied field". The rival Entries consideredby the .J mlicial Commis~ioner read as follows: Entry N"o. 31 of I Post and Telegraphs; Tdcthc Union List. phones, wireless, broadcasting and other like forms of communication. Entry No. 6 of I Public health ;tnd 'n,nit;ttion; the State List. I hospitals anJ di,puns.,,riee.

The attention of the learned .J uclicial Commis,ioner was apparently not drawn to Entry :\o. 1 of th<> State List, which is to the following effect: Entry :\ o. 1 of I Public order (but not including the State List. I the use of naYal, military or n,ir I forces of the Vnion in air! of . I ~i\·il power.) (1) S.C.R. SUPREME COURT REPOl~TS Shri H.J. Umrigar relied upon the last Entry either r958 alone, or in combination with Entry No. 6 of the State tl t I t•tl d t' d State of a;ast a11 1st, an we are o opuuon 1a 1e was en 1 e o o so. After the dictum of Lord Selborne in Queen v. Buc1i:~1a rah (1), oft-quoted and applied, it must be held as settled that the legislatures i11 our Country possess Hidayatullak J. plenary powers of legislation. This is so even after the divisioil of legislative powers, subject to this that the supremacy of the legislatures is ·Confined to the topics mentioned as Entries in the Lists conferring r<·spcctivcly powers on them.

Thm;e Entries, it has been ruled on many an occasion, though meant to be mntually exclusive are sometimes not really so. They occasionally overlap, and are to be regarded as enumerat·io simplex of broad categories. Where in an organic instrument such enumerated powers of legislation exist and there is a conflict between rival Lists, it is necessary to examine the impugned legislationin its pith and substance, and only if that pith aud substance falls substantially within an Entry or Entries conferring legislative power, is the legislation valid, a slight transgression upon a rival List, notwithstanding. This was laid down by Gwyer, C. J., in Subramanyam O/lettiar v. M uthuswamy Goundan (2), in the following . words:

"It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence ,to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Jmlicial Committee whereby the impugned sta,tule is examined to ascertain its 'pith and substance', or its ' true nature and character', for the purpose of determining whether it is legislation with respect to matters iii this list or in that." This dictum was express~ approved and applied by the JudiCial Committee in Prajulla Kumar Mukherjee (1) (1878) 3 App. ·cas. 889. (2) [1940) F.C.R. 188, 201. '958 v. Bank of Commerce, Ltd., Khulna('), and tJrn same SI I - 1• . h view has been expressed by this Court on more than a e of la;ast au one occas10n.

It IS equally .well-settled that the power Chawla to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be Hidayatullah J. said to be reasonably included in the power given. It becomes, therefore, necessary to examine closely how the Act is constructed and what it provides. The Act in its preamble expresses the intent as the control of the 'use' of sound amplifiers. The first section deals with the title, the extent, the commencement and the interpretation of the Act. lt does not unfold its pith and substance. The last two sections provide for penalty for unauthorised use of sound amplifiers and the power of police officers to arrest without warrant. They stand or fall with the constitutionality or otherwise of the second section, which contains the essence of the legislation.

That section prohibits the use in any place, whether public or otherwise, of any sound amplifier except at times and places and subject to such conditions as may be allowed, by order in writing either generally or in any case or class of cases by a police officer not below the rank of an inspector, but it excludes the use in a place other than a public place, of a sound amplifier which is a component part of a wireless apparatus duly licensed under any law for the time being in force. In the explanation which is added, 'public place' is defined as a place (including a road, street or way, whether a thoroughfare or not or a landing pl11oe) to which the public are granted access or have a right to resort or over which they have a right to pass.

The gist of the prohibition is the 'use' of an external sound amplifier not a component part of a wireless apparatus, whether in a public place or otherwise, without the sanction in writing of the designated authority and in disregard of the conditions imposed on the use thereof. It does not prohibit the use in a place other than a public place of a sound amplifier which is a component part of a wireless apparatus. (1) (1947) L.R. 74 I.A. 23. There can be little doubt that the growing nuisance r95B of blaring loud-speakers powered by amplifiers of State of-;;,jasthan great output needed control, and the short question is whether this salutary measure can be said to fall with- Chawla in one or more of the Entries in the State List. It must. be admitted that amplifiers are instruments of Hidayatullah J. broadcasting and even of communication, and in that view of the matter, they fall within Entry 31 of the Union List.

The manufacture, or the licensing of amplifiers or the con-trol of their ownership or possession, including the regulating of the trade in such apparatus is one matter, but the control of the 'use' of such apparatus though legitimately owned aud possessed, to the detriment of tranquillity, health and comfort of others is quite another. It cannot be said that public health does not demand control of the use of such apparatus by day or by night, or in the vicinity of hospitals or schools, or offices or habited localities. The power to legislate in relation to public health includes the power to regulate the use of amplifiers as producers of loud noises when the right of such user, by the disregard of the comfort of and obligation to others, emerges as a manifest nuisance to them.

Nor is it any valid argument to say that the pith and substance of the Act falls within Entry 31 of the Union List, because other loud noises, the result of some other instruments, etc., are not e"qually controlled and prohibited. The pith and substance of the impugned Act is the control of the use of amplifiers in the interests of health and also tranquillity, and thus falls stibstantially (if not wholly) within the powers conferred to preserve, regulate and promote them and does not so fall within the Entry in the Union List, even though the amplifier, the use of which is regulated and controlled is an apparatus for broadcasting or communication. As Latham, C. J., pointed out in Bank of New South Wales v. The Commonwealth (1): " A power:to make laws 'with respect to' a subject. matter is a power to make laws which in reality and substance are Jaws upon the subject-matter. It is not (1) (1948) 76 C.L.R. I, 186. !HO r95.v enough that a law should rllfer to the subject-matt('!' or apply to the subject-matter: for example, incomes1a1c (lf 11'11ir1s11rau I I 1 v tax aws app y to c ergymen an to otc -keepers as ciw~··fo members of the public; but no one would describe an income-tax law as being, for that reason, a law with JJidayatull.d• J. respect to clergymen or hotel-keepers.

Building re· gulations apply to buildings erected for or by I.Hinks; but such regulations could not properly he described tts faws with respect to banks or banking." On a view of t.hc Act as a whole, we think that the substance of the legislation is within the powcrn conferred by Entry No. 6 and conceivably Entry No. 1 of the State List, and it does not purport to encroach upon the field of Entry No. 31, though it incidentally touches upon a matter provided there. The end and purpose of the legislation fnrnishPs the key to connect it with the State List. 0lll' attention was not drawn to any enactment under Entry No. 31 of the Union List by which the ownership and possession of amplifiers was burdened with any such regulation or control, and there being thus no question of repugnancy or of an occupied field, we have no hesitation in holding that the Act is fully cornred by the first cited Entry and conceivably lhe other in the State List.

The Judicial Commissioner's order, with respect, cannot be upheld, and it must be set aside. \\'e allow the <tppeal and re\-crse the decbion, and we declare the A.ct in all it~ parts to be ·intra rire.s the Stale Legislature. As the matter is four years old \l'e do not order a retrial and we record that the State does not, as a result of the re\·ersal of the decision under appeal, propose to pros0cute the respondents, and that a ~tatmwnt to this effect IV<ts made before us at the J1ea.ring. Appeal allowed.