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PETITIONER:

THE STATE OF RAJASTHAN

Vs.

RESPONDENT:

SHRI G. CHAWLA AND DR. POHUMAL

DATE OF JUDGMENT:

16/12/1958

BENCH:

HIDAYATULLAH, M.

BENCH:

HIDAYATULLAH, M.

DAS, SUDHI RANJAN (CJ)

DAS, S.K.

GAJENDRAGADKAR, P.B.

WANCHOO, K.N.

CITATION:

1959 AIR 544 1959 SCR Supl. (1) 904

CITATOR INFO :

F 1960 SC 424 (11)

R 1970 SC 999 (5)

ACT:

Legislative Competence-Validity of enactment-Control of

Sound Amplifiers -Pith and substance of legislation-Ajmer

(Sound Amplifiers Control) Act, 1952 (Ajmer 3 of 1953), s.

3-Government of Part C States Act, 1951 (49 of 1951), S.

21-Constitution of India, Sch. VII, List 1, Entry 31, List

11, Entries 1, 6.

HEADNOTE:

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 ultra 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 1 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.

905

JUDGMENT:

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1 of

1955.

Appeal from the judgment and order dated October 13, 1954,

of the former Judicial Commissioner's Court, 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 delivered

by

HIDAYATULLAH, J.-This appeal was preferred by the State of

Ajmer, but after reorganisation the b 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 for 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 1953),

(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 the

pith and substance of the Act fell within

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906

Entry No. 31 of the Union List and not within Entry No. 6 of

the State List, as was claimed by the State.

Under Art. 246(4) of the Constitution, Parliament had power

to make laws for any Part of the territory of India not

included in Part A or B of the First Schedule,

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 to the provisions of this Act, the Legislative

Assembly of a State, may undertake 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,

(2) Nothing in subsection ( 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 legislative 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 unconstitutional, but it is

otherwise, if it falls substantially within the other two

lists, since prima facie there is no question of repugnancy

to a central statute or of an " occupied field".

The rival Entries considered by the Judicial Commissioner

read as follows:

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Entry No. 31 of Post and Telegraphs; Telephones, wire-

the Union List. less,broadcasting and other like forms

of communication.

Entry No. 6 of Public health and sanitation; hospita-

the State List. ls and dispensaries.

The attention of the learned Judicial Commissioner was

apparently not drawn to Entry No. 1 of the State List, which

is to the following effect:

Entry No. 1 of Public order(but not including the use

the State List. of naval,military or air forces of the

Union in aid of civil power.)

907

Shri H. J. Umrigar relied upon the last Entry either alone,

or in combination with Entry No. 6 of the State, List, and

we are of opinion that he was entitled to do so.

After the dictum of Lord Selborne in Queen v. Burah (1),

oft-quoted and applied, it must be held as settled that the

legislatures in our Country possess plenary powers of

legislation. This is so even after the division of

legislative powers, subject to this that the supremacy of

the legislatures is confined to the topics mentioned as

Entries in the Lists conferring respectively powers on them.

These Entries, it has been ruled on many an occasion, though

meant to be mutually exclusive are sometimes not really so.

They occasionally overlap, and are to be regarded as enume-

ratio 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 legislation in its pith and substance,

and only if that pith and 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 Chettiar v. Muthuswamy 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 Judicial Committee

whereby the impugned statute 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 in this list or in that."

This dictum was expressly approved and applied by the

Judicial Committee in Prafulla Kumar Mukherjee

(1) (1878) 3 App. Cas. 889.

(2) [1940] F.C.R. 188, 201.

908

v.Bank of Commerce, Ltd., Khulna (1), and the same view has

been expressed by this Court on more than one occasion. It

is equally well-settled that the power to legislate on a

topic of legislation carries with it the power to legislate

on an ancillary matter which can be 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. It does not unfold its pith and substance. The last

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two sections provide for penalty for unauthorised use of

sound amplifiers and the power of police officers to arrest

without ",arrant. 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

place) 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.

909

There can be little doubt that the growing nuisance of

blaring loud-speakers powered by amplifiers of great output

needed control, and the short question is whether this

salutary measure can be said to fall within one or more of

the Entries in the State List. It must be admitted that

amplifiers are instruments of 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 control 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 and 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 equally 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 substantially (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 subjectmatter is

a power to make laws which in reality and substance are laws

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upon the subject-matter. It is not

(1) (1948) 76 C.L.R. 1, 186.

910

enough that a law should refer to the subject-matter or

apply to the subject-matter: for example, incometax laws

apply to clergymen and to hotel-keepers as members of the

public; but no one would describe an income-tax law as

being, for that reason, a law with respect to clergymen or

hotel-keepers. Building regulations apply to buildings

erected for or by banks; but such regulations could not

properly be described as laws with respect to banks or

banking."

On a view of the Act as a whole, we think that the substance

of the legislation is within the powers 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 furnishes the

key to connect it with the State List. Our 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 covered by the first cited Entry and conceivably the

other in the State List.

The Judicial Commissioner's order, with respect, cannot be

upheld, and it must be set aside. We allow the appeal and

reverse the decision, and we declare the Act in all its

parts to be intra vires the State Legislature. As the

matter is four years old we do not order a retrial and we

record that the State does not, as a result of the reversal

of the decision under appeal, propose to prosecute the

respondents, and that a statement to this effect was made

before us at the hearing.

Appeal allowed.

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