ZA VERBHAI AMAIDAS v. THE STATE OF BOMBAY

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 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, the Resident First Class Magistrate had no jurisdiction to try the case, because under section 2 of Bombay Act No. XXXVI of 1947 the offence was punishable with imprisonment, which might extend years, to seven to the Criminal and under the Second Schedule Procedure Code, it was only the Sessions Court that had jurisdiction to try such offence. The answer of the State to enactment of the Bombay Act No. XXXVI of 1947, the Essential Supplies (Temporary Powers) Act had under gone substantial alterations, and was finally re-cast by the Central Act No. LU of 1950 ; that the effect of that Act No. XXXVI of 1947 these amendments was had become inoperative, that the governing Act was Act No. LII of 1950, under that Act the maximum sentence for the offence in question was three years, the Resident First Class Magistrate had jurisdiction over the offence. this contention was that subsequent and that as - • 1 954 Zav<rbhai A maid as v. Tkt State of Bombay. Venkatarama A,vyar J. - -+ y - - S.C.R. SUPREME COURT REPORTS 801 section 7 in Act No. LII of 1950 did not 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 the re-enactment (Temporary Powers) · Act including trench covered by the Bombay Act No. XXXVI on the field 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 and that as Act the same subject-matter, 1950 was a Central legislation of a later No. LII of date, it prevailed over the Bombay Act No. XXXVI of 1947. On this difference of opinion, the matter came section 429, Criminal Procedure Code, for up under 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 article 254(2), No. XXXVI of revision petition was the former prevailed ; and the accordingly present appeal has been preferred on a certificate under article 132(1), and 1s the point for 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 Magistrate would be perfectly legal. 1947, and that under dismissed. Against of the appellant this judgment, determination conv1ct10n 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. 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 It applied to 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 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 to foodstuffs which contains an express provi relating sion in this behalf, the Court shall make such direction, to be recorded in writing it is of unless op1111on should not be made m respect of the whole or as the case may be, a part of the property." for reasons that the direction 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 punish ment 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 "Notwith standing 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 less than six to be recorded in writing, be months, and shall also be liable to fine." This section section 7(1) of the Essential is avowedly repugnant to Section 107(2) of Supplies (Temporary Powers) Act. the Government of India Act, which was the Constitu tion 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 for the consideration of the Governor General has received the assent of the Governor-General, reserved S.C.R. SUPREME COURT REPORTS 803 the Provincial law shall in but nevertheless any time enact the same matter." that Province prevail, the Dominion Legislature may at further legislation with respect assent of On the footing that the subject-matter of Act No. XXXVI of 1947 fell within the Concurrent List, the Bombay Government obtained it came into Governor-General therefor, and thereafter 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 the Essential Supplies Bombay over (Temporary Powers) Act; but at the same time, it was any "further that section subject under legislation with respect to might be enacted by the Central Legislature. the same matter", section 7 of to all 1954 ,(averbhai Amaidas v. The State of Bomhqy. V enkatarama Ayyar]. 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 (Temporary Powers) Act, whereby the proviso to section 7 ( 1) was repealed and a new proviso substituted, which provided inter alia that, the Essential Supplies "Where the contravention 1s of an order relating express provision m to foodstuffs which contains an that any property in this behalf, the Court shall direct the order has been contravened shall respect of which 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 case may be, a part of the property." The Essential Supplies (Temporary Powers) Act was . agam amended in 1949. Under this amendment, the repealed, and a new clause proviso to section 7(i) was substituted in the following terms : - "(b) Where contravention an order relating to foodstuffs, the Court shall (i) sentence any person convicted of such imprison ment for a term which may extend to three years may, in addition, impose a sentence of fine, unless for contravention 1s of 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 be recorded it is not necessary to be made· in respect of the whole, or, as the case may be, a part of the property." to His Majesty, unless for reasons such direction is of opinion that • Then came Central Act No. Lil of 1950, under which section the old section 7 was enacted in the following repealed and a new terms : "(l) If any person contravenes any order under section 3 relating to cotton textiles he shall be punish able with imprisonment for a term which may extend to three years and shall also be liable to fine ; and any respect of which the order has been property 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 a term which may extend to three years and shall also be liable to fine, unless for reasons to be recorded fine only will Court is of opinion that a sentence of 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 the Government, may seem fit shall be forfeited 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 any part of the the case may be, property: contravention Provided that where the is of an order prescribing the maximum quantity of any foo<l grain that may lawfully be possessed by any person or class of persons, and the person contravening the order is found foodgrains execeeding twice the maximum quantity so prescribed, the Court shall- been in possession to have ( 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 excess of the the Government. the whole of such food grain in prescribed quantity shall be forfeited to 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. 1954 Zaverbhai Amaidas v. The State of Bo,,.b07 V enkatrama Ayyar J. any essential (3) If any person contravenes any order under section 3 relating to commodity other than cotton textiles and foodstuffs, he shall be punish able with imprisonment for a term which may extend to three years, or with fine or with both, and order so provides, any property in respect of which the the order has been contravened Court is satisfied that 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 Government of India Act was in force, the Constitu tion of India Act had come into operation, when Act No. LII of 1950 was enacted. Article 254(2) Constitution is as follows : - to one of the matters "Where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with enumerated m respect Concurrent List contains any provision repugnant the provisions of an earlier law made by Parliament or td that matter, then, the an existing law with respect law so made by the Legislature of such State shall, if for the consideration of it has been President and has received his assent, prevail 111 State : reserved Provided that nothing Parliament from enacting at any in this clause shall prevent law with time any 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." for Ontario v. Attorney-General 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 Attorney General Dominion('), that though a law enacted by the Parlia ment of Canada and within its competence would over ride 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) powers of Parliament, and w1der that proviso, Parlia ment can do what the Central Legislature could not under section 107 (2) of the Government of India Act, and enact a adding to, amending, varymg or repealing a law of the State, when it relates to a matter mentioned in is that under the Constitution Parliament can, acting to article 254(2), under the proviso repeal a State law. But where it does not expressly do so, then, the State law will be void respect if it conflicts with v1s10n same matter" to the enacted by Parliament. the Concurrent List. The position the Constitution has enlarged a later "law with that may be 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 Essential Supplies (Temporary Powers) Act by the Central Legislature in 1948, 1949 and 1950 are "further amendments made (1) [•896) A.G. 348. • - - • I -· - ,. . S.C.R. SUPREME COURT REPORTS 807 The is "in respect legislation If the later legislation legislation" falling within section 107 (2) of the Govern India Act or "law with respect to the same ment of matter" falling within article 254(2). important this provision is thing to consider with reference of the same whether matter." matters which formed the subject of the earlier legisla though of a tion but with other and distinct matters 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 legisla tion covering the same ground both by the Centre and by the Province, both of them being competent enact the same, the law of the Centre should prevail over that of the State. deals not with 1954 .<::averbhai Amaidas. v. The State of Bombay. Venkatarama Ayyar J. Considering present appeal it was "to provide the matter from this standpoint, the next question is, what legislation in 1948, first question to be asked is, what is the subject-matter the Bombay Act No. XXXVI of 1947 ? The -Of preamble recites contravention of orders enhancement of penalties for made under the Essential Supplies (Temporary Powers) Act, 1946." Then is the scope of the subsequent 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 consider the: effect of Act No. LII of 1950, which was in force on that date. By that Act, section 7(1) of the Supplies (Temporary Powers) Act as passed Essential in 1946 and as amended in 1948 and 1949 was repealed, and in its place, a new section was substituted. The that for purposes of punish scheme of that section is ment, offences under the Act are grouped under three those: categories-those relating to essential relating to foodstuffs, and foodstuffs. The: commodities other categories punishments are separately specified. With reference to foodstuffs, the punishment that could be awarded when the offence: consists the maximum prescribed foodgrains exceeding imprisonment for a be imposed in the several in possession of than textiles or relating textiles, cotton 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 In sions for fine and forfeiture of the commodities. other cases, there is the lesser punishment of imP,rison Section 7 is ment, which may extend to three years. thus a comprehensive code covering the entire field of punishmen~ for offences under the Act, graded accord to the character of the ing to the commodities and that is offence. The subject of enhanced punishment 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 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. that one contrary Bavdekar J. who came to 1947 was a matter different repugnancy might covered the same conclusion observed, establish correctly, repugnancy under section 107 (2) of the Government of India Act, it was not necessary legislation should say "do" what the other legislation says "don't", result when both the legislations field. But he took the view that the question of enhanced penalty under Act No. XXXVI of the Essential Supplies that of punishment (Temporary Powers) Act, and as there was legislation in respect of enhanced penalty only when the offellce the· was possession of foodstuffs Act prescribed No. XXXVI of 1947 remained untouched by Act In other No. LII of 1950 in respect of other matters. of enhanced words, he considered that punishment under Act No. XXXVI of 1947 was a matter different from the Essential Supplies (Temporary Powers) Act :ind its amendments ; and in this, with respect, he fell into an for contravention error. The question of punishment 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 subject-matter that of mere punishment of twice the question quantity, excess - • S.C.R. SUPREME COURT REPORTS 809 statutes the later provmon would be considered of construction relating that "when the punishment or penal~y. is altered in degree but not in kind, Interpreta superseding the earlier one." (Maxwell on tion of Statutes, 10th Edition, pages 187 and 188). "It construction", observed Gocldard J. in Smith v. Benabo(1), "that if a later statute created by a previous one, again describes an offence imposes a different punishment, or varies the procedure, statute : see Michell v. Brown(2), per Lord Campbell." the earlier statute is repealed by rule of a well settled 1954 .{.1J1Jerbhai Amaidas v. Tiu State of Bombay. Venkatarama: Ayyar J. - iliat they cannot both stand togeilier, It is true, as already pointed out, that on a question under article 254 ( 1) whether an Act of Parliament a law of the State, no question of prevails against repeal arises ; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter that of the of tl1e later legislation is identical with earlier, so the earlier is repealed by the later enactment, will be article 254(2) equally applicable to a question under whether the is in the State law. respect of We must accordingly hold that section 2 of Bombay Act No. XXXVI of 1947 against section 7 Qf the Essential Supplies (Temporary Powers) Act No. XXIV of 1946 as amended by Act No. LII of 1950. further legislation by Parliament the same matter as that of cannot prevail legislation on subjects which are The appellant also sought to argue that the subject matter 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 in the reference to Concurrent List, have relies, viz., Act legislation on which No. XXXVI of 1947, proceeds, as already stated, on the subject-matter is in the Concurrent the basis that List. The appellant raised Judges of the Bombay High Court, and they learned for leave to appeal to rejected it. this question before application. The the appellant application In the ( 1) (1937] I K.B. 518. (') I El. and El. 267, 27 4. Z,avtrbhai .Amoid0,1 .. Tht State of Bombay. V tnkatarama AJ'1a1 J. 1954 •October28. 810 SUPREME COURT REPORTS [1955] question as under article 132(1), this Court which was presented the only ground that was put forward as involving a substantial 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. to the interpretation of 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 that representation as untrue, Effect of. facts shotv The \Vord ·'discovers' in s. 15 of the Excess Profits Tax Act, 1940, is not limited to facts discovered, which existed during the is re relevant chargeable accounting period for which assessment opened under so discovered which came into existence subsequent to such accounting period. but also includes facts the section 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 termination of \Var the buildings, plant and machinery in question \Vere actually used by the assessee for his business. it \Vas discovered that even after 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 - • ·~