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:
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
114
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:
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
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
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.
911