-

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 reproduc­

tion 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is repealed by the later statute.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 under­

gone 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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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

provi­

sion 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 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

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 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

been reserved for the consideration of the Governor­

General has received the assent of the Governor-General,

+

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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

imprison­

ment 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 punish­

able 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<l­

grain 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

•

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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 punish­

able 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 Constitu­

tion 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 Attorney­

General

for

Ontario v. Attorney-General for the

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) the Constitution has enlarged the

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 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 pro­

v1s10n 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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S.C.R. SUPREME COURT REPORTS 807

legislation" falling within section 107 (2) of the Govern­

ment 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 legisla­

tion 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 legisla­

tion 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 punish­

ment,

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 provi­

sions for fine and forfeiture of the commodities. In

other cases, there is the lesser punishment of imP,rison­

ment, 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 accord­

ing 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

subject­

matter and cannot be split up in the manner suggested

by the learned Judge. On this principle rests the rule

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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 Interpreta­

tion 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 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

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 re­

opened

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

-