KERALA STATE ELECTRICITY BOARD versus INDIAN ALUMINIUM CO.

KERALA STATE ELECTRICITY BOARD

v. INDIAN ALUMINIUM CO.

September 1, 1975

[A. ALAGJRISWAMI, P. N. BHAGWATI, P. K. GOSWAMI, R. S. SARKARIA AND A. C. GUPTA, JJ.]

(Ten1porary Powers) Act, 1961,

Kerala E:ssential Articles Control (Ten1porary Powers) Act, 1961, S.2(a) and S.3-Kerala State E/Ectricity Supply (K'lTala State Electricity Board and Licensees Areas) Surcharffie Order made under s. 3-ConstitutionltJ validity of-Constitutidn of India, 1950-Art, 246-Notwithstanding'' and "Subject to" in Art. 246(1) and (3) 111eaning of-Entries 43 and 44 of List I and Entry 38 of List Iff,--Doctrine of pith and substance.

Presidential assent-If could be given td cure posiible repugna11cy-Ij could be given to notification.s--Assent to the whole Act not n1erely to one an1endmL11t when referred-Subordinar.e Legislation-Principle regarding validity of.

Section 2(a) of the Kerala Es.sential Articles Control (Temporary Pov,..ers) Act, 1961 defines "essential article" as meaning any article (not being an essential article as defined in Essential Commodities Act. 1955) which may be declared by the Government by a. notification to be an essential article. Section 3 enables the State Government, if or the opinion that it is necessary or expedient so to do for maintaining or increasing the supplies of any essential article etc. to make certain notified orders. The Act was originally intended to be in force for five y~ars but its life was extended by successive amend-' men ts.

In exercise of powers conferred by s.2(a) of the Kerala Act, the State Government declared 'electricity' as an essential article in 1965. In 1968, the State Government passed an Order called the Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order, 1968, under s.3 of the Kerala Act, by which, the State Electricity Board was required to collect surcharge from non-licensee consumers of electricity even though the Board may have entered into long term contra.:ts with them with regard to the rate at which electricity was to be ·supplied to them.

The respondents, who were bulk consumzrs of electricity, questioned before the High Court the validity of the Order. The Order having been ~truck down by the High Court, in appeal to this Court, the respondents supported the judgment of the High Court on the grounds : (i) The Kcrala Act is repugnant to the Electricity Act. 1910 and the Electricity (Supply) Act. 1948 (both of which are Central Acts) and, in particular the latter, which falls within Entries 43 and 44 of Lisi I; and that the State Act trenches upon th~1 field occupied by the 1948-Act which falls partly under Entry 43 of List I and partly under Entry 38 of List lll. On behalf of the appellants it was contended that the Kerala· Act falls under Entries 2·6 and 27 of List JI, and in any event, the Presidential assent to the K·e:rala Act has cured the repugnancy.

Allowing the appeal (per majority-Alagirisw<in1i, Bhagwati, Goswami and Sarkaria. JJ.) :

HELD : The Kerala Acl, the declaration of 'electricity' as an essential article under s. 2(a), and th~ Surcharge Order made under s. 3, are valid. [581 Gl

1. The question of repugnance ari5es only in case both the legislations fall within the same List, namely. List Ill. If any legislation is enacted by State I egisJature in respect of matter falling within List I that will be void. There t ·.w, therefore, be no question of repugnance between the ElectricitY Act, 1910 ru ,d the Electricity (Supply) Act_ 1948 on the one hand, and the Kerala Act on the other if' the first two Acts fall in List I or List TIT and the State Act in List II. [562 DJ

!ndu Bhushan v. Sundari Devi [1970] 1 S.C.R. 443 referred to.

2. (a) The words: "notwithstanding" in clause ( 1) and [11]subject to'' in clause (J) of Art 246 of the Constitution mean that where an entry is in general tCrDJB in List II and part of that entry is in specific terms in List ~ the entry in List I takes effect notwithstanding the entry in List II. This ts also on the principle thatJ the 'special" excludes the "general" and the general entry in List II is subject to the special entry in List I. [563 CJ

(b) The word 11notwithstanding" also means that if it is not possible to reconcile the two entries, the entry in List I will prevail. But before that happens, attempt should be made to decide in which List particular legislation Calli. For deciding under which entry particular legislation falls, the theory ot "pith and substance" has been evolved by Courts. If in pith and substance legislation falls within one list or the other, but some portion of the subject matter- of that legislation incidoentally trenches upon and might come to fall under another List, the Act as whole would be valid notwithstanding such incidental trenching. [563 D-El

(c) Both the 1910 Act as Well as the 1948..Act are existing law as con-templated under Art. 372 of the Constitution. An existing law continues to be valid even though the legislative {'!'Wer with respect to the subject ro<ttter of the existing law might be in different List under the Constitution from the List under which it would have fallen under the Government of India Act, 19135. ·But, after the Constitution came into force an existing law could be amended or repealed only by the Legislature which would be con1petent to enact that law if' ii were to be newly enacted. [566 G]

3(a) The Statement of Object• and Reasons though not relevant for the purpose of interpreting the sections of an Act, will throw light upon the object of the Legislature from the historica] point of view. [569 A]

(l>J The 1948-Act was enacted for the purpose of co-ordinated development of electricity in India on regional basi~. The Statement of Objects and Reasons states' that there was necessity for the constitution of semi-autonomous bodies like Electricity Boa:rds to administer grid' system on quasi-commercial lines. The Act deals With the incnq:x::iration and regulation of Electricity Boards. It created central authority (which is not an incorporated body) a' well M various provlncial Electricity Boards (which are incorporate~ bodies). Provincial Electricity Board located in one Province and operating in neighbouring Province could carry on its operations by agreement with the other Province or Provinces. The jurisdiction of an Electricity Board, however, was confined mainly to the jurisdiction of Province under the Act the executive power vestedl in the Provinces. The Statement of Objects and RCasons further says that the semi-autonomous Electricity Boards contemplated under the Act could not be set up by provincial Governments under the then exi.sting constitutional Act as they would be in the nature of trading corporations within the meaning of entry 3J of the Federal Legislative List of the Government of. India Act, 1935. [568 A-HJ

4. The argument that the 1948.Act falls under entries 43 and 44 of Ll•t I has no substance. [568 Al

(a) reading of the Statement of Objects and Reasons shows that the 1948eAct was legislation under an entry in the Concurrent List. Although the Statement of Objects and Reasons mentions entry 33 of the Federal Li•t of the Government of India Act, 1935 (corresponding to entries 43 and 44 of List I of the Seventh Schedule to the Constitution)-it does not show that the 1948-Act falls under entry 44. Nor is the fact that entry 33 of List I of tho Government of India Act, 1935 was mentioned in the Stateml!nt of Objects and Reasons conclusiVe test. [568 E]

(b) From an examination of the provisions of the l948·Act it would· be obviou• that one part Of the Act deals with the constitution of the Board the incotpotation Of the Board and the regulation Of its activities. But th~ main ~urpose o! tho Act is for rationalising the production and supply of electricity. The regulation contemplated in entries 43 and 44 of List I is not-regulation of the business of production, distribution and supply ofe1ectri-5-L925SupCl/75

city of the Corporation. The p1ov1s1on regarding the incorporation nn<l regulation of Electricity. Boards should be taken to be only incidental to the provisions regarding production, supply and distribution of electricity, Therefor~. the provisions Qf the 1948 Act regarding the Board"& functions do not make it one f'al1ing under entry 43 of Lise I. [570 H; 571 A}

R. C. Cooper v. Union [19701 3 S.C.R. 520 an<l Ran1fl111u /lousing Societ_\ v. Maharashtra 11971] I S.C.R. 719 followed.

(c) The 1948-Act in. pith and substance·. should be deen1ed to be one falling under entry 38 of List Ill. In the present case the incorporation of the State Electricity Boards is n1erely for the rationalisation ot' the production and supply of electricity, for taking measures conducive to ·electrical development and for alt n1atters incidentiill thereto. Furlhcrn1orc, Electrh.:ily Boards are not trading corporations; they are established to promote co-ordinated development of the ge)1er::1tion, ':'iupply and distribution of electricity on no-profit-no-los:-; basis. In the discharge of their functions. they are guided by directions on questions of policy given by the State Governn1ents. There are no share-holders and there i'i no distribution of profits. This is another reaSIOn why the 1948-A·ct cannot be said to fall under entry 43 of List I. l573 B-D]

(d) Even assuming that part of the 1948-Act is legislation With respect to incorporation and regulation of trading corporation, falling under entry 48 of List I at' Schedule Seven, the rest of it will fall under entry 38 of List II[. The Kerala Act has nothing to do with the incorporation and regulatiori of the Electricity Boards. and. therefore, it can only relate to entry 38, Li::>t UT, if at all. [573 F-G]

(e) The 1910 and 1948-Acts together forn1 complete (;Ode with re:-.pect to entry 38 in List 11I and the Board is only· an instrument fashioned for carrying out this object. [57 J A]

(f) 'fherefore both the 1910~Act and 1948-Act could be amended or repealed by the Parlian1ent and also by the State Legislature if' it obtains Presidential assel(t to an Act amending or repealing th~ 1910-Act or 1948-Act. [566 H'l

A. K. Krishna v. State of ftvfadra.\· [l957J SCR 399; P. N. Kaul v. Th~· State of J & K. [ 1959] Supp. 2 SCR 270 and J & K State v. M. S. Farooai [1972] (3) SCR 881. referred to.

(g) The assent of the President should be deemed not merely to ttie sub· stitution of the words five years by the words seven years in the Kerala Act but to the Act as lt'bole and any repugnance between the Kerala Act on the one hand and the 1910-Act and 1948-Act on the other should be deented to have been cured by such assent. The Kerala Act in so far as it deals with electricity can be deemed to be l"Cgislation under entry 38 of Lis.t III. Though the Act itself has not declared any article as an esS;Cntial article. wben the declaration was made und"Cr s.2(a) in 1965 it becan1e part of the Act. When the President assented to the Amendment Act of 1967 the declaration of electricity as an essential article h~d been made and should be deemed to have become part of the Act. [575 F; CJ

(5) But 1hc Kc nil .i\ct i:<-. n10't 'r f:11li1~g under entries 26 nnJ 27 of Li-st II. [57 5 Al

(a) "E·ssential article" is t'erm which has acquired defining connotation fn Indian legislative practice and is not vague or general term. "Essential "Commodity" defined in the Essential Con1111odities Act, 1955 includes practically every n1atter regarding industry within the legislative competence of Parliament. The term "essential commodity[1]' is an expression corresponding to conunodity "Cssential to the life of the con1nn1nity. Tt is not open to the authority e·iercising powers under s.2(a) of the Kcrala A·ct to declare any and every cGrnmodity as an essential cornrn~ity. That A-ct deals with e~<;ential. articles not being essential articles dealt with hv the Central Act of 195.'l. It 1s not 1egislation with respect to electricitv aild, therefore, docs not fall under entry 38 of List lIT. Electricity, being- beyond doubt an essential article may be declared to he an essential article under the Act. In that case the power

In that case the power

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exercised is. not in relation to elechicity qua electricity but electricity as. an essential article. The Act, therefore. in pith and substance is with respect to trade and commerce and production, supply and distribution of electricity. It is not permanent legislation with respect to electricity but temporary one dealing \Vith ~ temporary situation. f574 A; F-H] (b) The Surcharge Order was necessary for the survival and existence of the Board without which there can be no production or supply of electricity. It is no valid criticism. of this view to say that the ,powers of the Board under the 1948·Act are over-ridden by the Surcharge Order and the Order i~, therefore, repugnant to the 1948-Act. The Board was anxious to make the Surcharge Order. This is simple· case of' contract being over-ridden in exercise of statutory power:'\. [575 B]

6(a) It is not corrCct to say that in so far as the consequence of declaration under s.2(a) of the Kerala Act was that the State Government was enabled to make orders regarding production, supply and distribution of electricity, there was possibility of such orders being repugnant to the pro-vision~ of the 1910-Act and the 1948-Act and, therefore, any such repugnancy was cured by the as-sent given by the President. It is only the actual repugnancy that can be cured by Presidential assent and not the possibility of repugnancy_ [575 GJ

(b) No Presidential assent was possible to the notification. Art. 254(2) docs not contemplate Presidential assent to notifications issued under the Act. The Article contern.plates Presidential assent only to laws made by the Legislature of State. [567 G] 7 (a) Notwithstanding the fact that subordinate legislation is laid on the table of Hou5es of Parlian1ent or State Legislature and being subject to such modification, annulment or amendment as they may make, the subordinate legislation cannot be said to be valid unless it is within the. scope of' the rule-n1aking power provided in the statute. Where an executive authority is given power to frame subordinate legislation within stated lin1its, rules made by such authority, if outside the scope of-rhe rule-making power. should not he deemed to be valid merely because such rules havie been placed before the Legislature and are s.ubject to such mvdification, annulment or amendment as the Legislature may think fit The process of such amendment, modification or annulment is not the same as the process of legi<>lation and in particular it lacks the assent either of the· President or the Governor of the State. [576 E-G)

Minister of flealth v. The Ki11R. [1931] A.C. 494 and Institute of Patent· Agents v, Ldckwood, [1894] A.C. 347 referred to.

(b) ]f declaration made under s. 2(a) or an OrdCr 111ade under s. 3(a) is no6 within the SC<?Pc of the Act, it should be held to be not valid. [576 H]

( c) declaration can still be attacked if the power to make such declaration· was beyond the scope or the. power delegated. even if subsequent to the declaration the Act was amended and the President had given his assent to the Amending Act [577 A]

(d) But the power conferred by the Kerala Act is case of' conditional legislation. The various types of powers that can be exercised under that Act arc enumerated in it. Only an article with reference to which those powers are to be exercised is left to be determined by the Executive. 111at \Viii vary from time to time. It is the Executive that would be in position to jtidge when and under what circumstances an article becomes an essential article and, therefore, it is necessary to control the production, supply and distribution of tra_de and commerce in that article . .f578, H]

The Q11ee11 v. Burah (5 L.R. 178 @ 194). State of P1111jab v. Kha11 Clwnd AJ.R, 1974 SC 543 and Gwalior Rayon Mills v_ Asst, Commr. S.T, AT.R. 1974 S.C. 1660 followed.

Gupta, J. (dissenting).

. The. Ker.ala J?ssential ~tic~e's Control (Ten1porary Powers) Acr, 1961 1io an invalid piece of IegLslat1on on the ground of excessive delegation and the declaration and Surcharge Order made respectively under s.2(a) and s.3 of that Act are of no consequence. [582 G] •

l(a) The definition of essential article I-eaves it to the State Government to deci~e what . should be an essential article tor the purpose of the A<:t. The legislature is, of course, presumed to know the limits of its competence and assuming it is permissible to attribute similar knowledge to the Government as to t~e bounds of its authority under s.2{a) an essential article may be any- article covered by any of the entries in List II or Li~t llJ except the classes of commodities mentioned as an essential commodity in the· Essential Commodities Act. Until, therefore, the Government issued notification under s.2(a) declaring electrical energy to be an essential article almost four years after the Act came into force, it was not possible even to guess what the Act was about. Thus, the Act as passed had no positive content, it was an empty husk and its insubstantialitY, if bv itself not an invalidating factor, CA1>0ses the want of declared legislative policy in the Act. The Act does not provide any guidance or lay down any te9t to ascertain what makes an article e~ntial for the purpose ol' the Act. 'fhe reference to the Essential Commodities Act in s.2(a) which defines ''essential article" is merely to ex-clude from its purviiew the commodities covered by the Essential Commodities Act and only serves to emphasise its indefiniteness and makes it more difficult to find any clue to the nature of the articles the Legislature had in mind in enacting the Kerata Act. Almost the entire legislative field was left open to the Government to choose from and decide according to their own Jights what should be an essential article. [583 C-G]

(b) The Legislature cannot delegate the essential legislative function, which means· that the Legislature must declare the policy of the law and provide standard for the guidance of the subordinate law making authority. The Kerala Act authorises the Government to declare any article ag essential, except those mentioned in the Essential Commodities Act without laying down any definite criteriai or standards. This is surrendering unguided and uncanalised power to the· executive. The Act cannot be called an instance of conditional legislation. The powers conferred on the Go\o~rnment by the Kerala Act exceed the limits of permissible delegation. [583 HJ(c) The Kerala Act of 1961 was to remain in force for period of five years. from January 1962. The principal Act as well as the Amending Acts of 1967, 1969, and 1970 received the assent of the President. But the Act ag passed in 19()1 did not appear to contain any provision which was repugnant to any Central Act or existing law; that being so, the assent given to it seems redundant and or no consequence. Article 254(2) contemplates an existing repugnancy and not possible future inconsistencies.

[Obiter: Assuming that assent given by the President to the amending Acts would have the effect of curing the repugnancy between the declaratiou under s.2{a) and the Surcharge Order under s.3 of the principal Act on the one hand and the Central Acts of 191.0 and 1948 on the other. if the dedaration and the Surcharge Order were outside the Act. then the assent given to the Act 1;::ould not cure the repugnancy arising from these two Orders. [584 HJ

The Orders made by the State Government under s.2(a) and s.3(1) of the impugned Act could not be called par.t of the Act. The Act did not even say that such orders were to be tq:ated as if enacted in the Act. The .President's assent could not be said to have cured the repugnancy created by-the Surcharge Order. [585 GJ

Argu111e11ts fdr tTie appellant :

· The impugned Kerala Act is legislation under Entry 26 of List JI {Trade and commerce). It may also fall under Entry 27, List II (Production, Dis-tribntfon and Supply of Goods). Assuming that the Electricity Supply Act falls under Entries 43 and/or 44 of List I, the State Legislature is competent

,,...( "'

to pass legislation relating to the trading and commercial activilies of the Corporation set up under the Central Act passed under Entry 43 and/or 44 of List I.

Assuming that the Kerala Act encroaches on the powers of the Electrici~y Board und"er s.49·, such encroachment is incidental and is justified under ·the doctrine of pith and substance.

Assuming that the Central legislation as well as the State legislation falls under Entry 38 of List III, there is no repugnancy or conflict between the powers of the Board under s.49 and the impugned! Act and. the orders because they are made within the provision& of the Act and to aid and support the powers of the Board.

If the surcharge had not been introduced the Electricity Board would not have been able to carry on the business and would have been compelled to close down its business.

Argu1nents on behalf of Elea,tricity Board:

The Act applies to essential commodities i.e. all essential commodities as understood at the time of legislation in 19,62. In Vi'Cw- of the programme of industrialisation. and the limited scope of the Central Essential Commodities Act, 1955, the present Act was conceived. The background of the Act strongly indicates tihe con~nt of the expre$ion 'essential commod~ties' as meaning the same thing as ''essential to the life of the community''. Under the impugned Act by s.2 (a) the . power· to select the articles for control is delegated to the State Governmenl The1 power to take orders for control is delegated both to the Stare Government and authorised officers. The artiyles falling within the Central Essenti~J Commodities Act, 1955 are excluded from the purview of the Act not because control of those articles is not desired but because the State Government have the n'ecessary powers under the Central Act itself. The definition in s.2(a) should be understood to mean "essential articles'' notified bv the State Government and essential articles should be understood as those Wbicb are essential to the life of the community. The word 'control' in the preamble is indicative or the limited scope cf the Act. This interpretation saves the Act from the vice of abdication of essential legislative. function by the Legistature.

The preamble to the Act is key~note to the understanding of an Act as well as the Statement of Objects and Reasons clearly indicates the scope and purpose of the Act. ''Trade and Commerce'' as well as ''supply and distribution'' must be in respect of' articles or goods but on that account it will not be permissible to dissect the Act and make it relatable to each commodity over which control is imposed. The pith and substance of the Act makes them fall within List If, Entries 26 and 27. The law is not law relating to electricity as such nor relating to the incorporation or power of the Electricity Board established under the Electricity Supply Act, 1948. ·

The Supply Act, 1948, as clearly expressed in the preamble and worked out in the Act through several agencies including the Board shows that the pith and substance of the Act is development of electricity and falls within List III, Entry 31 of the Government of India Act. 1935 .• The incorporation of State Electricity Board for each State is only one of the means of achieving the objective. Moreover, the Board is not trading Corporation since it is not created to earn profits but to carry out development and supply energy at the most economical rate. Each Board is established by State. The whole law falls in the Concurrent List and in any event not Under List J, Entry 43 because the Board is not trading corporation nor does it fall under Entry 44 because the Board is State Board for the State. The Supply Act was passed under the Government of Tndia Act, 1935 and was an "existing law" and not an impediment to the State· :passingi law within its competence. There is no conflict between the impugned notification and the exercise of powers ol' the Board under s.40 of the supply Act. Assuming that both the legislations fall under List III, the , President's assent to the impugned Act was operative, the conflict was immaterial.

Argr1111ents for the respo11de111 :

The El~ctri'city Supply Act of 1948 is rclatable partly to List I entry 43 and 44 (Government of India Act List 1 Entry 33) and partly to Li:-.t Ill Entry 38 (Government of India Act List Ill Entry 31 J. Part of the 1\ct i'i concerned with the constitution and powers of the Electricity Board which is something like the memorandum and Article or Limited Company :ind another part of the Act may be said to he concerned with electricity.

The Kerala Act is :t. vague piece of legislation. The Articles to which thi-.; ,f\ct may apply are not mentioned. It is only after the power under the Act i~ exercised that it is possible to sfiy \vhethcr it would conflict with any other legislation.

The in1pugned Act may be applicable to A.rticlcs rclalable to as n1anv a<; 20 legislative entires front Li'il L II and TH at the discretion of' the Govern--1nent. Regti.lation and Control with regard to n1any of the matters are covered by existing c·entraL Acts such as Industries Regulation and Development Act. Factories Act; Central Excise and Salt Act.' Defence of India Act, Tndiun Electricity Act, 1910, Electricity Supply Act, 1948.

Every aspect of electri:ity in respect of generation, control price fixation n1ust be re]atable to entry 38 of List l and not Entt~' 26 or 27 of List II. The Centnil Legislature has already legislated on all thes·.: aspects in the Jndian Electricity Act of 1910 and Supply Act 1948. If these were the subject matter of .Entries 26 and 27 of List II, the Central Legislature could not have legislated.

Any argt1n1ent on the basis that the Electricity Supply Act 1948 is existing law, is not relevant because the 1948 Act has been cxtensiV'ely amended in 1956 and 1966 and these arnendn1ents relate to the field of control under the Kcrala Act. if the same is applied in respect of electricity.

The Presidential assent given to the K'.~rala Act could be said to be an as...cnt within the n1eaning of Article 254 since at the time when the ;.i5sent \\.'as giv'.!n the Act did not disclose any inconsistency with any c·entral Act since the item5 to which the, Kerala Act was applicable did not appear in the ~tatute. The conflict arose only when an order was made by the State Government applying the Act to electricity. No steps were even taken to incorporate in the Act the commodities to which the Act could apply and to take President'~ a<>sent 1hereon.

The Kerala Act suffers fro1n excessive delegation b·~cause at the will of the State Government the Act could be made applicable to any article, except those covered by the Essential Commodities Act. The State Government could apply the Act even to items falling in Li<>t I since there is no guideline.

Civil Appeals Nos. 2557 /69, /69,

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 2557 /69, /69, 20170, 1423-1434, 1733, 2474, 2575-2578172, 95-105, 1318, 1371-74, 2040173, 2100-2102174 and 120, 121 & 536 of 1975.

From the Judgment and Order dated 24-9-69, 16-8-71, 25-1-72, 16--2-72, 11-2-72, 10-2-72, 22-11-72, 21-7--72, 8-2-72, 25-7-72, 31-5-72 and 4-3-75 of the Kcrala High Court in W.A. Nos. 809169, 846-47, 855, 867, 894 and 940 of 1969, 261171 and 957-58, 983, 988 and 1021169, 942i69, 427171, 458, 415. 407, 408 & 68 of 1971 and 211, 241!70, 3 and 7171, 342/72, 36, 42 and 43 of 1971 arid

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Civil Appeal No. 2117 of 1972.

Appeal by Special Leave from the Judgment and Order dated 17-8--71 of the Kerala High Court in W.A. No. 1021of1969.

Lal Narain Sinha, Solicitor Geneml of India, A. G. PuddisserJ' for 1hc Appellant jn C.A. No. 2557/69.

V. A. Seyid Mohammed and K. M. K. Nair for the Appellant in C.A. No. 20170.

A. K. Sen (In C.A. Nos. 1423 /72), M. P. Jha (In C.A. 1423172), A. G. Puddissery (In all the petitions) for the appellants in C.As. Nos. 1423, 1434, 1735, 2474, 2575, 2576-78/72, 1318, 1371, 1374, 2040(73, 2100-2102/74, 120-121, 536/75.

P. C. Chandi, K. M. K. Nair and K. R. Nambiar for the Appellants in CAs. Nos. 21l7 /72 and 95-105 /73.

S. V. Gupte, Ajay Ray and P. Mathai, 0. C. Mathur, K. !. John and J. B.. Dadachanji for the Appellants in CA. No. 1457 /71.

G. Rat/ii, Advocate General for the State of Orissa and B. Paratha-.rnrthy for the Appellant in C.A. Nos. 1652[74.

Vinoo Bhagal for the Appellants (In C.As. Nos. 1653-54774).

S. V. Gupte (In CA. No. 2557 /69), £'.. Mathai, Ajay Ray, 0. C. Mathur K. John, J. B. Dadachanji and Mrs. S. Bhandare (In C.A. No. 20/70 for Respondent Nos. 1 (In CA. No. 2557 /69) & (In CAs. Nos. 20170, 1423-24/72).

G. B. Pai, K. I. John, 0. C. Mathur, J. B. Dadachanji and P. K. Kurian (In CAs. Nos. 1733/72) for Respondent No. 1 (In CAs. Nos. 1426-1429, 1431-1434, 1733/72, 2577-78, 95-96, 99-100 antl 102 -105173).

N. Sudharkaran, P. Matlwl and P. K. Pillai for Respond~nt Nos. I (In CA. No. 2575/72) and (C.A. No. 1425/72).

K. R. Nambiar for Respondent No. 2 (In CA. No. 2575/72, 2S76 - 78 /72 and 2040 /73) .

Miss Lily Thomas for Respondent No. 1 (In CA. No. 2576/72).

A. S. Nambiar for Respondent No. 1 (In CA. No. 2578/72).

N. Sudharkaran for Respondent No. 1 (In CA. No. 97773) .

G. B. Pai (In CA Nos. 2100-2102/74, 121/75), P. Mathai (In CA, Nos. 1318175) Ranjit Mahanty, Ajay Ray (In CAs. No. 1652(74) and 0. C. Mathur, K. I. John and J. R Dadachanji (In all matters) for Respondent No. 1 (In C.A. No. 1318[73, 2100-2102[74, 121 I 75) for the Respondents (In C.As. Nos. 1652[74).

Lal Narain Sinha, Solicitor General of India (In C.A. No. 1457 71) A. G. Puddissery for the Respondent (In CA. No. 1457 and 1641171).

T. S. Krishnamoorthy Iyer, P. Matha;, N. Sudharkaran and P. K. Pillai for Respondent No. 1 (In CA. No. 1371 and 1374/73) and (In

C.A. No. 1373/73)

K. M. K. Nair for Respo:ident No. 2 (In C.As. Nos. 1371-1374/

G. L. Santhi, P. Mathai, K. ]. John, 0. C. Mathur and]. .. Dada-chanji for Respondent No. 1 (In CA. No. 1372173).

G. Rathi, Advocate General for the State of Orissa and B. Partha-sarthy for Respondents (In CAs. Nos. 1653-1654 774).

P. K. Pillai for the Intervener (In CA. No. 20/70).

G. L. Sanghi, P. V. Kapur, U. K. Khaitan (for Ferro Alloys Corpn.) K. R. Chaudhry K. Raj Chaudhry (for A.P. Electricity Board) for the Intervener (In C.A. No. 1652/74).

S. Balakrishnan for Respondent No. 1 (i;1 CA. No. 2040/73).

Note : Mrs. Sunanda Bhandar·~, Advocate appeared for the applicant intervener in CA. Nos. 1457 and 1642/71 and CA. Nos. 1652--1654]74 and Mr. B. Sen, Se.nior Advocate, appeared for Respondent No. 1 (In CA. 20/70 and applicant intervener in CA. No. 16521 74).

The Judgment of the Court was delivered by Alagiriswami, J. A. C. Gupta, J. gave dissenting Opinion.

ALAGIR!SWAM!, J. The validity of the Kenlla State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order 1968 is in question in these appeals. That Order was passed in exercise of the powers conferred by section 3 of the Kerala Essen-tial Articles Qmtrol (Temporary Powers) Act, 1961. It obliges the Board to collect surcharges from non-licensee consumers of electricity even though the Board may have elntered into long-term contracts with them with regard to the rate at which electricity is to be supplied to them. The Act is one to provide, in the interest of the general public for the control of the production, supply and distribution of, and trade. and commerce in, certain articles. Section 2(a) of the Act defines "essential articles" as meaning any article (not being an essen-tial commodity as defined in the Essential Commidities Act, 1955) which may be declared by the Government by notified order to be an essential article. Section 3 enables the Government, if of opibion that it is necessary or expedient so to do for maintaining or increasing the SU)?plies of any essential article or for securing their equitable distri-bution !llld availability at fair prices, to make notified orders providing for:

(a) regulating by licences, permits or otherwise the pro-duction or manufacture of any csential article:

(b) controlling the price at which any essential article may be bought or sold;

( c) regulating by licences, permits, or otherwise the sto-rage, distribution, transport, disposal, acquisition, use or consumption of any essential article;

( d) prohibiting the withholding from sale of any essential article ordinarily kept for sale;

(e) rei;1uiring any person holding in stock any essential article to sell the whole or spe<:ified part of the stock to the Gove.rnment or to an officer or agent of the Government or to such other person or class of persons and in such cir-cumstances as may be specified in the order;

(f) regulating or prohibiting any class of commercial or financial transactions relating to any essential article, which, in the opinion of the authority making the order, are, or if unregulated are likely to be detrimental to the public interest;

(g) collecting any information or statistics with view to regulating or prohibiting any of the aforesaid matters;

(h) requiring persons engaged in the production, supply or distribution of, or trade or commerce in any essential article to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such informatlon relating thereto as may be specified in the order;

(i) regulating the processing of any essential article;

(j) ex,rcising over the whole or any part of ~n existing undertaking, such functions of control and subject to such conditions, as may be specified in the order;

(k) any incidental and supplementary matters including in particular the entering and search of premises, vehicles, vessels and aircraft, the seizure by person authorised to make soch search of any article in respect of which such person has reason to believe that contraveJntion of the order has been, is being or is about to be committed, the grant or issue of licences, permits or other documents, and the charging of fees therefor.

In exercise of the powers under section 2(a) electricity was declared as an essential article in 1965. Electricity is the only article declared as an essential article under the Act so far a!,1d in spite of the wide powers with regard to making of notified orders under section 3 the impugned Surcharge Order is the only order so fur made. It pr9vides, as already stated, for levying of surcharge on supplies of electricity made to bulk consumers, many of whom are respondents in these appeals.

The validity of the Act itself is not seriously questioned except in o'ae respect which we shall deal with later; but it is contended that by the declaration of electricity oas an essential article under the Act, the

Act impinges upon various matters either in List I or List III of the Seventh Schedule to the Constitution. According to Mr. Gupte, who appeared for the respondent in Civil Appeal No. 2557 of 1969, the legislation is repugnant to the Electricity Act, 1910 and the Electricity (Supply) Act, 1948, in particular the latter, which falls withia Entries 43 and 44 of List I. According to Mr. B. Sen, who appeared for the respondents in Civil Appeal No. 20 of 1970, the Act trenches upon the field occupied by the Electricity (Supply) Act, 1948 which falls partly under Entry 43 of List I and partly under Entry 38 of List Ill. According to Mr. G. B. Pai, who appeared for the 1st respondent in Civil No. 1733 of 1972. the 1948 Act falls within E1try 44 of List l and the Kcrala Act impinges upon that field. On the contra~y, the Solicitor General appearing on behalf of the Kerala State Electricity BC'ard contends that the Kerala Act falls under Entries 26 and 27 of List II of the Seventh Schedule to the Constitution.

There is, in the 'irguments o•,1 behalf of the respondents. certain amonnt of confusion. The question of repugnance arises only in case hoth the legislations fall within the same List III. There can, there-fore, be no question of repugnance between the Electricity Act aml the Electricity (Supply) Act 0'.1 the one hand and the Kerala Act on the other, if the former fall in List I or List III and the latter in List TI. If any legislation is enacted by State Legislature in respect of matter falling within List I that will be without jurisdiction and there-fore void.

The scope of the legislative powers of the Parliament and the State Legislatures is now well settled. They arc found in Article 246 of the Constitution, which reads :

246. (1) Notwithstandi•.ig anything in clauses (2) and (3), Parliament has exclusive power to make laws with res-pect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), Parliament and, subject to clause ( 1), the Legislature of a:ay State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Consti-tution referred to as the "Concurrent List").

(3) Subject to clauses (1) and (2). the Legislature of State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in the Constitution referred to as the "State List").

( 4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in State notwithstanding that such matter is matter enu-merated in th-~ State List."

In view of the provisions of Article 254, the power of Parli~ment to legislate in regard to matters in List III, which arc de-alt with by clause (2) is supreme. The Parliament has exclusiye power to legis-late with respect to matters in List I. The State Legislature has exclu-sive power to legislate with respect to matters in List II. But this is subject to the provisions of clause ( 1) (leaving out for the moment the reference to clause 2). The power of Parlrament to legislate with respect to matters included in List I is supreme notwithstanding any-thing contained in clause (3) (_again leaving out of consideration the provisions of clause 2). Now what is the meaning of the words "notwithstanding" in clause (J ). anU "subject to" in clause (3)? Thev mean that where an entry is In general terms in List ll and-part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II. This is also on the principle that the 'special' excludes the 'general' and tho general entry in List II is subject to the special entry in List I. For instance, though house accommodation and rent control might fall within either the State List or the Concurrent List, Entry 3 in List I of Seventh Schedule carves out the subject of rent coatrol and house accommodation in can-tonments from the general subject of house accommodation and rent control (see lndu Bhusan v. S11ndari Devi(i). Furthermore, the word 'notwithstanding' in clause ( l) also means that if it is not possible to reconcile the two entries the entry in List I will prevail. But before that happens attempt should be made to decide in which list parti-cular legislation falls. For deciding under which entry particular legislation falls the theory of "pith and substance" has been evo1\'cd hy the Courts. If in pith and substance legislation falls within one List or the other but some portion of the subject matter of that legi~­lati0''1 incidentally trenches unon anrl rn 'Qht cnmc to fall under another List, t?e Act as 'a whole. would be valid notwithstanding such incidental trenching. These pnnciplcs have been laid down in number of deci-sions.

. In re. Tlze Central Provinces and Berar Act No. XIV of 1938 (') Sir. Maunce Gwyer observed, with reference to the corresponding pro-v1s10ns of the Government of India Act, as follows :

"H wi!l be observed .that by s.100(1) the Federal Legis-Iatu;c is. g1vci: the,,cxclu~ive powers enumerated in the Federal Legislat!ve List, notwithstanding anything in the two next ~ueccedmg sub-sections" ol that sectio'a. Sub-section (2) is not relevant to the present case, but s.s.(3) is, as I have stated, the enactn~ent which gives to the Provincial Legis-latu:es .the e.xclus1~e powers enumerated in the Provincial ~egislattve List. S1mdarly. Provincial Legislatures are given Y. s. l 0~ (3). th~ exclusive powers in the Provineral Legis-lative List subject to the two preceding sub-sections" that ~s d~.ssf (~) and (2) · Accordingly, the Goverament of ~hia ~rt e~ ~5mtcnd that, even if the impugned Act were erwi~e .w1t m the competence of the Provincial Le . Ia~r~,_tt _1s__ nevertheless invalid, because the effect of t~~ (I) [1970] I S.C.R. 443 · . (2) [ 1939] F.C. R. JS_

non-obstante clause in s.100(1), and fortiori of that clause read with the opening words of s.I 00(3), is to make the federal power prevail if federal a'.1d provincial legislative powers overlap."

He observed further :

"Only in the Indian Constitution Act can the particular problem arise which is now under consideration; and an endeavour must be made to solve it, as the Judicial Com-mittee have said, by having recourse to the context and scheme of the Act, and reconciliatiO'a attempted between two apparently conflicting jurisdictions by reading the two entries together and by interpreting, and, where necessary, modifying, the language of the one by that of the other. If indeed such reconciliation should prove impossible, the>a, and only then, will the non-obstante clause operate and the federal power prevail; for the clause ought to be regarded as last resource, witness to the imperfections of human expression and the fallibility of legal draftsmanship."

Jn Subrahmanyan Chettiar v. Mutuswami Goundan('[1]) the same karned C.J. observed :

"Section 100 ( 3) of the Constitution Act provides that Provincial Legislature has the exclusive power of legislating with respect to the matters enumerated in List II, the Provin-dal Legislative List. But this power is expressly stated to be subject to the provisions of s.100(1), which give an exclusive power to the Federal Legislature to legislate with respect to the matters enumerated in List I, the Federal Legislative List. Hence, though Parliament has no doubt done its best to eaact two lists of mutually exclusive powers, it has also provided, ex-majori cautela, that if the two sets of legislative powers should be found to overlap, then the federal legislation is to prevail. And the reason for this is clear. However carefully and precisely lists of · legislative subjects are defined, it is practically impossible to ensure that they never overlap; and an absurd situation would result if two inconsistent laws, each of equal validity, could exist side by side within the same territory."

In the same case Sulaiman, J. observed :

"Oa very strict interpretation of s.100, it would neces-sarily follow that from all matters in List II which are ex-clusively assigned to Provincial Legislatures, all portions which fall in List I or List III, must be excluded. Simi-larly, from all matters falling in List III, all portions which fall in List I must be excluded. The section would then mean that the Federal Legislature has full and exclusive - ---------power to legislate with respect to matters in List I, and has (!) [19n] F.C.R. 188.

KERALA STATE ELEC. BOARD v. INDIAN ALUMINIUM CO. 5 65 . (Alagiriswami, /.)

also power to legislate with respe~t to matters ill; List I~I. Provincial Legislature has exclusive power to legislate with respect to List II, minus !'!_atters fallli;g in List I or List III, hl!S concurrent power to legis~ate .with. respect t~ I!latters in List III, minus matters falling m List I. In its fulle~t scope, s. 100 would then 1?ean that if it.happens that there 1s any subject in List II which also falls m List I or List Ill, it must be taken as cut out from List II. On this strict inter-pretation there would be no questici,1 of any real overlapping at all. If subject falls exclusively in List II 'and no other List, then the power of the Provincial Legislatures is supreme. But if it does also fall within List I, then it must be deemed as if it is not included in List II at all. Similarly, if it also falls in List III, it must be deemed to have been exclµded from List II. The dominant position of the Central Legisla-ture with regard to matters in List I a"1d List Ill is thus established. But the rigour of the literal interpretation is relaxed by the use of the words "with respect to" which as already pointed out only signify "pith and substance'', and do not forbid mere incidental encroachment."

In Governor General in Counl'il v. Judicial Committee of the Privy Council observed :

Province of Madras(') the

"For in Fedei•al Constitution, in which there is divi-sion of legislative powers between Central and Provincial legislatures, it appears to be inevitable that controvei;sy should arise whether one or other legislature is not exceedr,1g its own, and encroaching on the other's constitutional legislative power, and in such controversy it is principle,, which their Lordships do not hesi!!ate to apply in the present case, that it is not the name of the tax but its real nature, its "pith and substrrace" as it has sometimes been said, which must determine into what category it falls."

In Prafulla Kumar Mukherjee and Others v. Bank of Commerce, Limited, Khulna(") the Judicial Committee of the Privy Council quoted with 'approval the observations of Sir Maurice Gwyer C.J. in Subrahmanyan Che/liars case (supra) to the effect:

"It must inevitably happen from time to time that legis-lation,_ though purporting to deal with subject in one list, touches also on subject l,1 another list, and the different provisions of the enactment may be so closely intertwined that blind observance to strictly verbal interpretation would result in large number of statutes being declared invalid · because the legislature enacting them may appear to have legis-lated in forbidden sphere. Hence the rule which has be~>l evolved by the Judicial Committee, whereby the impugned _ statute is_ examined to ascertain its 'pith and substance,' or

(I) [1945] F.C.R. 179..

(2) [1947] F.C.R .. 28

its 'true nature and character,' for the purpose of determin-ing whether it is legislation with respect to matters in this list or in that."

They also held :

'Thirdly, the extent of the invasion by the Provinces iato subjects enumerated in the Federal List has to be considered. No doubt, it is an important matter, not, as their Lordships think, because the VJ!idity of an Act can be determined by discriminating between degrees of invasion, but for the pur-pose of detcrmiaing what is the pith and substance of the i.mpugncd Act. Its provisions may advance so far into Federal territory as to show that its true nature is not con-cerned with Provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be. such as to show that the pith and substance of the impugned Act is not money lending but promissory notes or bITaking ? Once that question is determined the Act falls on one or the other side of the line and can be seen as valid or invalid according to its true content. This view places the prece-<lcncc accorded to the three lists i•a its proper perspective."

The matter has been eraboratcly discussed in Union v. H. S. Dhil1011(1). All the relevant earlier decisions have been considered there and for the purpose of these cases it is not necessary to enter into any further discussion on this aspect. Having discussed the questi(!,1 of the legislative field it might be necessary to discuss the question as to what happens if it should be held that the matter under consideration in these c•ases falls within the Concurrent List, that is, Entry 38 in List III as contended in the alternative by some of the respondents. As already me!ationed the question will arise only if it should be held that the Kerala State Act falls under Entry 38 as contended by Mr. B. Sen. If the impugned legislation falls under List Ill then the question of repugnancy of that legislation with the existing law or the law made by Parliame!,1t, as the case may be, will have to be considered. Both the 1910 Act as well as the 1948 Act are existing law as contemplated under Article 372 of the Constitution. An existing law continues to be valid even though the legislative power with respect to the subject matter of the existing law might be in different list under the Constitution from the list under which it would have fallen under the Government of India Act, 1935. But after the Constitution came into force an existing law could be amended or repealed only by the legislature which woulcl be competent to enact that law if it were to be newly enacted. ln that sense both the 1910 Act and the 1948.Act could be amended or repealed by the Parliament and also by the State Legislature if it obtains the Presidential assent to an Act amending or repealing the 1910 Act <Jr 1948 .Act (leaving aside for the moment the question whether they

(!) [19711 2 S.C.R. 33.

• y ...

~ ;>.,_

fall wholly or partly under Entries 43 and 44 of List I of the Seventh Schedule to the Constitution) . That the question of repugnancy can arise only with reference to legislation falling under the Concurrent List is now well settled. In A. S. Krishna v. State of Madras(~) after referring to section 107 of the Government of India Act, 1935, which is in terms similar to clause (I) of Article 254, this Court observed :

"For this section to apply, two conditions must be ful-filled : (I) The provisions of the Provincial law and those of the Central legislation must both be in respect of matter which is enumerated in the Concurrent List, and (2) they must be repugnant to each other. It is only when both these requirements arc satisfied that the provincial law will, to the extent of the repugnancy, become void."

To the similar effect is the decision in P. N. Kaul v. The State of J&K(2). The whole question of repugnancy is elaborately discussed in l & K State v. M. S. Farooqi([3]),

Let us now, therefore, consider what in its pith and substance is the subject matter of the Kerala Act: Is it an Act dealing with incorpora-tion, regulation and winding up of trading corporations, including bank-ing, insurance and any financial corporations but not including co-operative societies (Entry 43) ; or incorporation, regulation and wind-ing up of corporations, whether trading or not, with objects not confined to one State, but not including universities (Entry 44)? Clearly the Act itself docs not deal with any of these subjects. It is true that the notifica-tion issued under section 2(a) declaring electricity as an essential article enable orders to be made under sectio11 3 of the Act. But the only question wc arc concerned with in this case is the validity of the sur-charge order. No notified order has been made under any of the powers conferred on the State by section 3 except the impugned Surcharge Order. If the Act had stood as it is or even if the notification had stood as it is nobody would have any cause for complaint. It is only by the issue of the Surcharge Order that the respondents have been affected. Jt is for the purpose of deciding the question of the.validity of the Sur-charge Order that we have to decide the validity of the declaration under sectio°'2(a) of electricity as an essential article. Does the noti-fication make the legislation one relating to electricity under Entry 38 of List III? Was it necessary to get the President's assent for this noti-fication as contended by some of the respondents ? Quite clearly no Presidential assent was possible to the notification. Article 254(2) docs not contemplate Presidential assent to notifications issued under the Act. The Article contemplates Presidential assent only to laws made by the Legislature of State. We shall later deal with the ques-tion wl1ether the assent of the President to the Act after the 1965 noti-fication declaring electricity as an essential article validates that notifi-cation.

The Electricity Act 1910 and the Electricity (Supply) Act, 1948 can be said to cover the whole field relating to electricity under Entry

38 of List III of the Seventh Schedule. We arc clearly of the opinion that the argument of Mr. Pai that the 1948 Act falls under Entry 44 of L!St I has no substance. It does not deal with the incorporation regu-lation and winding up of corporation with objects not confined to one State. The Central Electricity Authority created by that Act is not an incorporated body, whereas the various State Electricity Boards arc incorporated. The Act deals with the incorporation and regulation of the State Electricity Boards. Where State Electricity Board is to operate beyond the limits of the State for which it is comtituted, it is done only by means of a!li agreement with the other State in which it is to operate. The Stakment of Objects and Reasons of that Act does not help his contention. The coordinated development of electricity in India on regional basis, for which the Government felt it necessary to bring in legislation whlch resulted in the Electricity (Supply) Act, 1948 cannot show that it deals with the inoorporation and. regulation of an inter-State corporation. The statemept itself proceeds on the basis that the executive power will vest in the Provinces. which means that the legislation falls in the Concurrent List. The Statement of Objects and Reasons also mentions the necessity for the constitution of semi-autonomous bodies like Electricity Boail:ls to administer the grid systems. The Electricity Boards, as already mentioned,, are con-fined to the jurisdiction of States. The Statement of Objects and Reasons itself shows that what was contemplated was legislation und~r the Entry in the Concurrent List. The Statement of Objects and Reasom, however, mentions Entry 3 3 of the Federal List of the Government oi India Act, 1935 as the Entry under which the legislation was undertaken. That Entry corresponds to Entries 43 and 44 of List I of Seventh Schedule to the Constitution. Therefore, the Statement of Objects and Reasons does not show that the Electricity (Supply) Act falls under Entry 44. The question then is whether it falls within Entry 43. The fact that the Statement of Objects and Rcasohs mentions Entry 33 of List I (of the Government of India Act) as the legislative head n11der which the legislation was being undertaken is not conclusive. We have, therefore. to consider whether the Elec-tricity (Supply) Act. 1948 falls under Entry 43 as contended by some of the respondents.

There is no doubt that the: Act does deal with the incorporation and regulation of the Electricity Boards. but the question is whether in pith and substance it is legislation regarding the constitution and regula-tion of the Electricity Boards falling under Entry 43 of List I or on elec-tricity falllng under Entry 38 of List III. The object of the Electricity (Supply) Act as seen from the preamble is to rationalise the production and supply of electricity and to take measures conducive to electrical development. In the Statement of Objects and Reasons it is stated that ~'there is necessity for the constitution of semi-autonomous bodies like Electricity Boards to administer the grid system on quasi-commer-cilll lines, and that such Boards cannot, however, be set up by Provin-cial Governments under the existing Constitutional Act as they would be in the nature of trading corporations within the meaning of Entry 33 of the Federal Legislative List." The Statement of Objects and

KERALA STATE ELEC. BOARD V. INDIAN ALUMINIUM CO. (Alagiriswami, J.}

Reasons though not relevant for the purpo~e of interpre?ng the sec-tions of the Act, will throw light upon the ob1ect of the legislature from the historical viewpoint.

Let us now look at the Act itself. Section 3 provides for the constitution of Central Electricity Authority. It says that the Central Government shall constitute body called the Central Electricity Authority to exercise such functions and perform such duties and in such m~nner as the Central Government may prescribe or direct. Sec-tion 5 provides for the constitution and composition of State Electri-city Boards. Section 6 says that the Government of any State may in lieu of constituting Board under section 5 enter into an agree-ment with the Government of contiguous State to provide that the Board constituted for the latter State shall exercise the functions of Board under the Act in the former State. Section 7 deals with the effect of inter-State agreement as contemplated in section 6. Section 8 provides for terms and conditions of appointment of the members of the Board. Section 9 relates to the qualifications of the members of the Board. Section 10 deals with removal or suspension of the members of the Board. Section lOA gives power to the State Government to declare void certain transactions in connection with which member has been removed under the provisions of section 10. Section 12 provides that the Board shall be body corporate. Section 14 provides for the meetings Oif the Board. Section 15 deals with the appointment of the staff by the Board. Section 16 states that the State Government shall constitute State Electricity Consultative Council for the State and provides for constitution of that body. Section 17 provides for the constitution of Local Advisory Committee. Section 18 describes the general duties of the Board. Section 19 says that the Board may supply el~ctricit,Y to any licensee ?r person requiring such supply in any area r.n. which scheme sanctioned under Chapter V is in force. Section 20 provide& for power of the Board to engage in certain under-takings. Section 21 concerns the power of the Board in relation to water-power. By section 22 the Board is invested with power to conduct investigations, experiments and trials for the improvement of the methods of transmission, distribution and supply etc. of electricity. Section 24 deals with the power of the Boarkl to contribute to certain associations engaged in generation, distribution and supply of electri-city. Section 25 says that the Board may, from time to time, appoint qualified persons to be Consulting Engineers to the Board. Section 26 says that the Board shall have all the powers and obligations of licensee under the Indian _Electricity Act. 1910. Section 28 concerns the preparation of scheme for establishment of generating stations etc. Section 29 provides for publication and sanctioning of schemes pre-pared under section 28. SectiQn 30 deals with the matters to be consi-dered by the authority in recommending scheme. Sections 31 and 32 also relate to schemes. Section 34 deals with controlled stations. Section 35 provides for the supplv bv the Board to licensees owning l'.enerating stations, while section 36 gives power to the Board to close down generating stations. Section 37 provides for purchase of gene-rating stations of undertaking or main transmission lines by the Board'. Section 38 makes provision for establishing new generating stations by 6-L925 Sup. Cl/75

foe Board. Section 39 deals with the arrangements to be made with the licensee for operation of the Board's generating stations. Section 40 makes provision regarding the connections with main transmission lines purchased by the Bo"rd. Section 41 rdates to the use by the Board of transn1ission line::>. Section 42 provides Ior po\vcr ot the Board for placing wires, poles etc. Section 43 describes the powers of the Board to enter into arrangements for purchase or sale oi electri-city under certain conditions. Section 44 places certain restrictiom on establishment of new generating stations or major additions or replace-ment of plant in generating stations. Section 45 says that if any licensee fa<ls to close down his generating station, pursuant to decla-ration of the Board under section 36, or if any person establ:shcs or acquires new generating station, the Board may authorise any of its ofiicers to enter upon the premises of such station and shut down the station. Section 46 provides for Grid Tariff. It says that tariff to be known as the Grid Tariff shall, in accordance with any regulations made in this behalf, be fixed from time to time by the Board in respect of each area for which scheme is in force, and tariffs fixed under the section may, if the Board thinks fit, differ for different areas, and sub-section (2) of that section provides that the Grid Tariff shall apply to sales of electricity by the Board to licensees when so required under any of the first, second and third schedules and shall also be applicable to saks of electricity by the Board to licensees in other cases. Section 4 7 vests power in the Board to inake alternative arrangements with licensees. Section 49 makes provision for sale of electricity by the Board to persons other than licensees. Section 50 says that the Board should not supply electricity in certain circumstances. Section 55 pro-vides that licensees should comply with the directions of the Board. Section 63 savs that the State Government may make subventions to the Board for -the purpose of the Act. Section 64 provides for loans by the State Government to the Board. Section 65 gives power to the Board to borrow. Section 66 provides for guaranteeing of loans raised bv the Board by the State Government. Section 67 provides for priority of the liabilities of the Board. Section 68 makes provi-sion for depreciation reserve. Seeton 69 deals with the accounts of the Board and. their audit. Section 76 provides for arbitration of all disputes arising between the State Government or the Board and licensee or other person. Section 78 vests power in the State Government to make rules. Section 78A says that in the discharge of its fu<,1ctions, the Board shall be guided by such directions on question of policy as may be given to it by the Government. Section 79 vests power in the Board to make regulaticms. Section 81 savs that all members, officers and servants of the Board shall be deemed to be public ser-vants within the meaning of section 21 of the Iadian Penal Code.

! _ It would be obvious that one part of the Act does deal with the const .. itutio'! ?f the .Bo.ard, the incorporadon of the Board and the re-gulation of its act1VI\Jes. But the mam purpose of the Act is for · rationalising the production and supply of electricity. The regulation contemplated in Entries 43 and 44 is not regulation of the business of production, distribution and supply of electricity of the corporatioa. As the 1910 and 1948 Acts together form complete code, with res-

,), [> ]

pect to Entry 38 in List III the Board is only an instrument fashioned .ior carrying out this object. The provisim regarding the incorpora-tion and regulation of the Electricity Board should be taken to be only incidental to the provision regarding production, supply and distri-bution of electricity .

It was observed by this Court in R. C. Cooper v. Union( [1 ]j

"The argument raised by Mr. Setalvad, intervening on behalf of the State of Maharashtra and the State of Jammu and Kashmir, th·at the Parliament is competent to enact Act 22 of 1969, because the subject-matter of the Act is "with respect to" regulation of trading corporations and matters subsidiary and incidmtal thereto and on that account is covered in its entirety by Entries 43 and 44 of List I of the Seventh Sche\Jule cannot be upheld. Entrv 43 deals with incorporation, regulatiO'a and winding up of trading corpora-tions including banking companies. Law regulating the business of corporation is not law with respect to regula-tion of corporation. In List I entries expressly relating to trade and commerce are Entries 41 & 42. Agaia several entries in List I relate to activities commercial in character. Entry 45 "Banking" Entry 46 "Bills of exchange, cheques, promi:;sory notes and other like instruments; Entry 47 "Insu-rance"; Entry 4'8 "Stock exchanges and future markets"; Entry 49 ."Patents, inventions and designs." There are several entries relating to activities commercial as well as non-commercial in List II-Entry 21 "Fisherks"; Entry 24

"Industries .... "; Entry 25 "Gas and Gas works"; Entry 26 "Trade a'.1d ~ommerce": Entry 30 "Money-lending and money-lenders"; Entry 31 "Inns and Inn-keeping"; Entry 33 "Theatres and dramatic performances, cinemas etc.";. We me unable to accede to the argument that the State Legis-latures are competent to legislate in respect of the subject-matter of those entries only whe,1 the commercial activities are carried on by individuals and not when they are carried on by corporations.''

Therefore the provisions in the 1948 Act regarding the Board's func-tions do not make it one falling under Entry 43 of List I.

In .~amtanu Housing Society v. Maharashtra([2 ]) this Conrt had dealt wit~ the Maharashtra Industrial Development Act, 1961 and · the questwn whether the Maharashtra Development Corporation for-med u~der the Act was trading corporation. In holding that the leg1slation fell under Entry 24 of the State List and \10t under Entry 43 of the Union List this Court observed :

(i)[19101 3 s.C:R::sJo.

"The Act is one to make special provision for securing the orderly establishment in industrial ·areas and industrinl estates of industries in the State of Maharashtra, and to assJSt generally in the orga'.1isation thereof, and for that purpose to est•ablish an Industrial Development Corporation, and for pur-poses connected with the matters aforesaid.

The Corporation is established for the purpose of secur-ing and assisting the rapid and orderly establishment and organisation of industries in industrial areas and industrial estates in the State of Maharashtra.

Broadly stated the functions and powers of the Corpora· tion are to develop industrial areas and industrial estates by providing amenities of road, supply of water or electricity, street lighting, drainage .... or otherwise transfer iiay property held by the Corporation on such conditions as may be deemed proper by the Corporation ..... .

The principal functions of the Corporation in regard to the establishment, growth ancl development of industrles in the State are first to establish and mi111age industrial estates at selected places and secondly to develop industrial areas selected by the State Government. When industrial areas are selected the necessity of acquisition of land in those areas is apparent. The Act, therefore, contemplates that the State Government may acquire land by publishing notice specifying the particular purpose for which such land is re-quired. . . . . . Where the land has been acquired for the Corporation or any local authority, the State Government shall, after it has mken possession of the land, transfer the land to the Corporation or that local authority ....... .

It is in the backgroll'nd of the purposes of the Act and powers and functions of the Corporation that the real and true character of the legislation will be detern:iined ..... Industries come .within Entry 24 of the State List. The establishment, growth and development of industries in the State of Maharashtra does not fall within Entry 7 and Entry 52 of the Union List. Establishment, growth and development of industries in the State is within the State List of industries. . . . . Acquisition or requisition of land falls under Entry 42 of the Concurrent List. In order to achieve growth of industries it is necessary not only to acquire land but also to implement the purposes of the Act. The Cor-poration is therefore established for carrving out the purposes of the Act. The pith and substance of the Act is establish-me.1t, growth and organisation of industries, acquisition of land in that behalf and carrying out the purposes of the Act by setting up the Corporation as one of the limbs or agencies of the Government. The powers and functions of the Cor-poration show in no uncertain terms that these are all in

KERALA STATE ELEC. BOARD V. h'IDIAN ALUMINIUM CO. (Alagiriswami, J.)

aid of the prh1cipal and predominant purpose of establish-ment, growth and establishment of industries. The Corpora-tion is established for that purpose ..... We, therefore, hold that the Act is •a valid piece of legislation."

In the present case the incorporation of the State Electricity Boards is merely for the rationalisation of the production and supply of elec-B tricity, for takingi measures conducive to electrical development and for all matters i11cidental thereto. The incorporation of the Electricity Boards being incidental to the rationalisation of the production and supply of electricity and for being conducive to electrical development, the 1948 Act in pith and substance should be deemed to be one falling under Entry 38 of List III. Furthermore, Electricity Boards are not trading corporations. They are pnblic service corporations. They have to function without any profit motive. Their duty is to promote co-ordinated development of the generation, supply and distribution of electricity in the most efficient and economical manner with particular reference to such development in areas [1]aot for the time being served or adequately served by any licensee (Section 18). The only injunc-tion is that as far as practicable they shall not carry on their operations ut loss (Section 59). They get subventions from the State Govern-D ments (Section 63). In the discharge of their fnnctiotas they are guided by directions da questions of policy given by Sl'ate Governments (Section 78A). There are no shareholders and there is no distribu-tion of profits. This is another reason why the 1948 Act cannot be said to fall under Entry 43 of List I.The question, therefore, is whether the impugned legislation falls nnder Entry 3 8 of List III or Entries 26 a[1]ad 27 of List II and if the former, whether it is repugnant to the existing law on the snbject, that is, the 1910 and 1948 Acts and if that were so, whether that repugnuncy has been cured by Presidential assent?

Even assuming that part of the 1948 Act is legislation with respect to incorporatioa and regulation of trading corporation, falling under Entry 43 of List I of Schedule Seven, the rest of it will fall under Entry q8 of List III. That part of the Act relating to the regulation of the activities regarding production and distribution of electricity would, as we have shown, fall nnder the Entry 'Electricity'. The Kerala Act has nothing to do with the incorporation alld regulation of the Electri-city Board and, therefore, it can only relate to Entry 38 of List III, if at all.

The argument of the learned Solicitor General appearing on behalf of the Kerala Electricity Board in support of his submission that the legislation falls under Entries 26 and 27 of List II may be summarised as follows : Those entries do not enable the State Legislatures to legis-late with regard to all conceivable goods like arms, ammunition atomic minerals etc. as was argued by Mr. Sen. legislature while' legislat-ing with respect to matters within its competence should be dcemed·to know its limits and its legislative authority and shonld not be deemed to be legislating beyond its jurisdiction. One thing that has alwaysgot to be kept clear in one's mind is that there may be more than one aspect with regard to particular subject matter. "Essential articles'' is term which has acquired definite conaotatoon in IndiM legislative practice and is not vague or general term. In the Government of India Act 1935 Entries 27 and 29 in List I correspond to Entries 26 and 27 of List II in the Constitution. There was no entry ia that Act corresponding to Entry 33 of List III of the Constitution. Sec-tion 102 of that Act enabled the Federal Legislature to legislate in the State List during the emergency. During the World War the Defence of India Act 1939 e'aabled the Central Government to make such rules as appeared to it necessary or expedient for maint-aining SU!?-plies and services essential to the life of the community. Rule 81 of the Defence of India Rules dealt with maintaining supplies and servi-ces essential for the life of the community and electricity ,v~s specifi-cally referred to as aa article within the scope of tr.'at rule. Many orders regarding electricity w.ere 111ade during the course of that \var like Electricity Control Order, 1942 of Bihar. When the proclamation of emergency was revoked on 1.4.1946 the laws made by the Federal Legislature with respect to matters included in the Provincial Legisla-tive List would h-ave ceased to have effect and therefore the British Parliament enacted India (Central Government and Legislative) Act, 1946 enabling the Felieral Legislature to make laws with respect to trade and commerce (whether or r,ot within the Province) in, and production, supply and distribution of cotton, woollen textiles, papers. foodstuffs etc. and in exercise of that power the Central Legisbturc enacted Essential Supplies (Temporary Powers) Act, 1946 for conti-nuance of powers to control prodnction, supply and distribution etc. In respect of articles not covered by the Central Act the Provinces passed similar laws regarding other esse'.1tial commodities, tcr instance, Madras Essential Articles Control and Requisitioning Act, 1049 in res-pect of ten articles including electricity. At present electricity is the only article included within the scope of that Act. The Essential Com-modities Act 1955 was passed by Parliament on 1.4.55. Essential commodity was defiaed in that Act. It practically incll'ded every matter regarding industry within the legislative competence of Par!ia-ment. Thus the word 'essential commodity' is an cxpressi[1]Jn corres~ ponding to commodity essential to the life of the community. It is not, therefore, open to the authority exercising powers under section Z(a) of the Kerala Act to declare •any a>ad every commodity as o.n essential commodity. That Act deals with essential articles not being essential articles dealt with by the Central Act of 1955. It is not an Act with respect to the incorporation or regulation of trading corpora-tions and therefore does not fall under Entry 43 or 44 of List I. It is not legislation with respect to electricity and therefore does not fall under Entry 38 of List III. Electricity being beyond doubt an essential article may be declared to be an essential article under the Act. In that case the power exercised is not in relation to electricity qua electricity bnt electricity as an essential article. The Act therefore in pith and subsance is with respect to trade and commerce and pro-dnction, supply and distribution. We agree that this is the correct. view. It is not permanent legislation with respect to electricity but temporary one dealing with temporary situation. There can be no

KERALA STATE ELEC. BOARD V. INDIAN ALUMINIUM CO. (Alagiriswami, /.)

doubt about the argument cm behalf of the Board that the Surcharge Order is necessary for its survival and existence without which there can be no production or supply of electricity. That is why. it i~ .a matter falling under Entries 26 and 27 of List II. ·It JS no vahd cnti-cism ot this view to say that the powers of the Board under the 1948 Act are overridden by the Surcharge Order and the order is therefore repugnant to the 1948 Act. Indeed the Board is more. than willing, it is anxious, for the Surcharge Order to be made. It JS not necessary to resort to section 59 for this purpose. This is simple case of contract being overridden in exercise of statutory powers.

In the alternative it is argued as follows : The Kerala Act insofar as it deab with electricity c>an be deemed to be legislatici,1 under Entry 38 in List III. Though the Act itself has not declared any article as an essential article, when declaration was made under section 2(a) in 1965 declaring electricity as an essential article for the purposes of the Act, it became part of the Act. When the President assented to the Kerala Act in 1962 it may be that it cannot be deemed that he had assented to it on the basis that the provisions 0£ that Act were re-pugnant to some Act made by Parliament or some existing law in the concurrent field because there was nothing in the Act itself which made it repugnant to any Act passed by Parliament or any existing law. But when he assented in 1967 to the Act extending the life of the Kerala Act by another two years the declaration of electricity as an essential article had been made anld should be deemed to have become part of the Act. So far we are in agreement with the argument of the learned Solicitor General. But when he goes further and argues that insofar as the oonsequence of such declaration was that the State Government was enabled to make orders regarding production, supply and distribution of electricity, there was possibility of such orders being repugnant to the provisions of the Electricity Act, 1910 and the Electricity (Supply) Act, 1948 and therefore any such repugnance was cured by the asS>eut given by the President, we cannot agree. We agree that the assent should be deemed not merely to the substitution of the words "five years" by the words "seven years" in the Kerala Act, but to the Act as whole, that is , as amended by the 1967 Act and any repugnance between the Kerala Act and the Electricity Act, 1910 and the Electricity (Supply) Act, 1948 should be deemed to have been cured by such assent. When assentfog to the 1967 Act the President should naturally have looked into the whole Act, that is, the 1961 Act as amended by the 1967. Act. But the declaration itself did not create any repugnancy with the 1948 Act. It was in 1968 that the Surcharge Order was made, in pursuance of which the bills were served on the various respondents in these appeals and demands made for enhancing charges for electricity. And it was the Surchar~e Order that can be said to create the repugnancy if at all. It is 01;-lv actual reommancv that can be cured by Presidential assent and not the possibility of repngnancv.

Mr. Krisbnamoorthv Iver aooearinl': for the respondents in Civil Apoeals Nos. 1371 and 1373-74 of 1973 is therefore right when be anrues that the declaration of electricitv as a'a essential article in 1965 did not in any way affect the rights of the respondents but only the

Surcharge Order of 1968 and that as the bills for enhanced charge~ for electricity were served on the respondents in 1968 before the 1969 amendment of the Act the Surcharge Order and the demands made were not cured of their repugaancy till the 1969 Amendment Act was ussented to by the President assuming that there 1s such repugnancy. If there is such repugnancy by virtue of the Surcharge Order the assent of the President can cure the repugnancy between the Kerala Act and the 1910 and 1948 Acts only if it is subsequent to the Surcharge Order. It is the exercise of the power under sectid,1 3 of the Kerala Act that is alleged to have created the repugnancy. We do not pause to consider whether there is in fact any repugnancy between the Surcharge Order and the 1948 Act.

The question still remains whe~her whe~ declaration. is m~de under section 2(a) of the Act declanng an article as all essential article or an Order is made under section 3 such declaration or Order be-comes part of the Act ? In England even where an Act declares that subsidiary legislation shall have effect as if enacted in the Act it does not preclude the Court from calling in questid,1 the subsidiary legisla-tion where it is inconsistent with the provisions of the Act (Minister of Health v. The King([1]). But it would appear that where the statute provides for the laying of the rules before Parliament and the Parlia-ment could have annulled them, such provision would make the sub-ordinate legislation beyond challenge (Institute of Patent Agents v. Lockwood,{'). In India many statutes both of Parliament and of State Legislatures provide for subordinate legislation made under the provi-'sions of those statutes to be placed on the table of either the Parliament or the State Legislature and to be subject to such modificatidn, amend-ment or annulment, as the case may be, as may be made by the Parlia-ment or the State Legislature. Even so, we do not think that where an executive authority is given power to frame subordinate legislation within stated limits, rules made by such authority if outside the scope of the rule making power should be deemed to be valid merely because such rules have been placed before the legislature and are subject to such modification, amendme,1t or annulment, as the case may be, as the legislature may think fit. The process of such amendment, modi~ fication or annulment is not the same as the process of legislation and in particular it lacks the assent either of the President or the Governor of the State, ~s the case mav be. We are. therefore, of opinion that the correct view is that notwithstanding the subordinate legislation being laid on the table of the House of Parliament or the State Legis-lature and being subject to such modification, annulment or amendment as they may make, the subordinate legislation cannot be said to be valid unless it is within the scope of the rule making power provided i'n the statute. ·

What happens then to declaration made under section 2(a) or an Order made under section 3. If such declaration or Order i~ not within the scope of the Act it should be held to be not valid. Does the subsequent assen~ of the President to an Amending Act, which as

(1) [1931] A.C. 494.

(2) [1894] A.C. 347.

.. .. '

KERALA STATE ELEC. BOARD V. INDIAN ALUMJ:'IIUM CO.

we have shown earlier il1 effect amounts to an assent to the whole Act, cure this defect? We consider that the declaration itself can still be attacked if the power to make such declaration is beyond the scope of the power delegated. Whether the power delegated can be attacked on the ground of excessive delegation of the legislative powers or on the ground that in so conferring the legislative power on the executive authority the legislature has abdicated its function or the legislature itself could not have made such law is different question. There is slight differ·ence between such situation and the one where it is held that the declaration is beyond the scope of the Act That electricity is an essential article and therefore the 1965 declaration under sectici,i 2 (a) declaring electricity as an essential article is valid cannot be dis-puted. It is not disputed that an article which is not in fact an essen-tial article cannot be declared to be an esse'atial article.

The next question to be considered, therefore, is whether the de-claration or the Order can be said to be bad on the ground either that there was excessive delegation o~ that the legislature can be said to have abdicated its powers? In The Queen v. Burah(l) it was observed :

"Their Lordships agree that the Governor-General in Council could not by any form of enactment, create in India, and arm with general legislative authority, new legislative power,. not created or authorized by the Council's Act. Nothing of that kind has, in their Lordships' opinion, been done or attempted in the present case. What has been done is this. The Governor-General in Council has deter-mined, in the due and ordinary course of legislation, to remove partioular district from. the jurisdictiolll of the ordinary O:mrts and offices, and to place it under new Courts and offices, to be appointed by and responsible to the Lieutenant-Governor of Bengal; leaving it to the Lieute-nant-Governor to say at what time that change shall take place; and also enabling him, not to make what laws he pleases for that or any other district, but to apply by public notification to that district any law, or part of law, which either already was, or from time to time might be, in force, by proper legislative authority, "in the other territories sub-ject to his government." The Legislature determined that, so far, certain cha~ge should take place; but that it was expedient to leave the time, and the manner, of carrying it into effect to the discretion of the Lieutenant-Governor; · and also, that the laws which were or might be in force in the other territories subject to the same Government were such as it might be fit and proper to apply to this dis-trict also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust discretion to the Lieutenant-Governor. This having been

done as to the Garo Hills, what was done as to the Khasi and J aintia Hills '! The Legislature decided that it was tlt ai1J proper that the adjoini,ng district of the Khasi n(nd · Jainna Hills should also be removed from the jurisdiction of the existing Courts, and brought under the same pro-visions with the Garo Hills, not necessarily and at all events, but if ar~d when the Lieutenant-Governor should think it desirable to do so; and that it was also possible that it might be expedient that not all, but some only, of those provisions should be applied to that adjoining district. And accordingly the Legislature entrusted, for these pur-poses also, discretionary power to the Lieut·enant Governor.

Their Lordships think that it is fallacy to speak of the powers thus' conferred upon the Lieutenant-Governor (large as they ur.doubtcdly are) as if, when they were exercis-ed, the efficacy of the acts done under them would be due to any other legislative authority than that of the Govemor-Gencral in Council. Their whole operation is, directly and inunediately, under and by virtue of this Act (XXII of 1869) itself. The proper Legislature has exercised its judgment as to place, person, laws, powers; and the r<:sult of that judgment has been to legislate conditionally as to all these things. The conditions having been tiulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an im-perial or in provincial Legislature, they may (in their Lordships' judgment) be well exercised, either absolutely or .condi~ionally. Legislation, conditional on ',the use of particular powers, or on the exercise of limited discretion, entrusted by the Legislature to persons irn whom it places confidence, is no uncommon thing; and, in many circums-tances, it may be highly convenient. The British Statute Book abounds with examples of it : and it cannot be sup-posed that the Imperial Parliament did not, when constitu-ting the Indian Legislature, contemplate this kind of condi-tional legislation ~s within the scope of the legislative powers which it from time to time conferred."

W arc of opinion that the power conferred by the Kerala Act is case of conditional legislation as contemplated in the above decision. The various types of powers that can be exercised under that Act are enumerated in it. Only the article with reference to which those powers are to be exercised is left to be determined by the executive. That will vary frorn time to time; at one time salt may be an essential .article, at another ,time rice may be an essential article and on third occasion match boxes. It is the executive that would be in position to judge when and under what circumstances an article becomes an essential article and therefore it is necessary to

control the production, supply and distribution or trade and com-merce in particular article. The corresponding Madras Act, the Madras Essential Articles Control and Requisitioning (Temporary Powers) Act, 1949 originally had ten articies included in the schedule as "essential· articles" with powers to add others to the schedule. It oow contains only one article in the schedule, electricity. It cannot therefore be said to suffer from the vice of excessive delega-B tion either. Subsequent decisions of this Court only emphasize this. point.

We may however refer to two recent decisions of this Court. In State of Punjab v. Khan Chand([1]) dealing with East Punjab Movable Property (Requisitioning) Act, 1947 this Court held as follows

"The Act confers uncontrolled power on the State Gov-ernment or the officers authorised by it to requisition any movable property. No guidelines have been laid down regarding the object or the purpose for which it becomes necessary or expedient to requisition movable property. Even the authority requisitioning movable property is not required to specify the purpose for which it has become necessary or expedient to requisition that property. There is tjo provision in the Act that the power of requisitioning movable property can be exercised under the Act only for public purpose nor is there any provision •that powers under the Act can be exercised only in an emergency or in some special contingency. Hence the provisions of the Act violate Articles 14 and 19 of Constitution."

The Act did not even provide for suitable machinery for determining the compensation payable to the owner of the movable property nor did it contai~ any guiding principles for determining the amount of compensation. But iu the very same decision it was observed :

"Considering the complex nature of problems •which have to be faced by modern State, it is but inevitable that the matter of details should be left to the authorities acting under an enactment. Discretion has, therefore, to be given to the authorities concerned for the exercise of the powers vested in them under an enactment."

This decision considered all the relevant decisions on the subject and is not against the view which we have taken.

We must, however, refer to the decision of this Court in Gwalior Rayon Mills v. Asst. Commr. S. T. (2) relied npon by' the respondents. In that case it was found that the Parliament had laid down legisla-tive policy and had not abdicated its legislative function. It is neces-sary to re.fer to the view taken! in that case by the majority judgment that it is not correct to say that if the legislature can repeal an enact-ment, it retains enough control over the authority making the subor-

--------- -------

-------. (1) A.LR. 1974 S.C. 543. (2) A. I. R.1974 S.C. 1660.

dinate legislation and, as such, it is not necessary for the legislature to lay down legislative policy, standard or guidelines in the statute. That was, of cqurse, not the argument on behalf of the appellants in this case. But having regard to the fact that reference was made to the decision in Cobb & Co. Ltd. v. Kropp(') which is very often relied upon for contending that if the legislature conferred certain powers on an executive authority it could be upheld because the legis-B lature cquld any time repea1l the legislation and withdraw such authority and discretion as it had vested in that authority, it is 11ecessary to look little more closely into that judgment. The main dispute there was about the State Transport Act, 1960 passed by the legislature of1 Queensland. It was attacked on the ground that it unlawfully and unconstitutionally delegated to the Commissioner for Transport sovereign powers of the legislature of Queensland to impose and levy taxes a,nd would constitute an unlawful and unconsti-tutional transfer of sovereign power of legislature to the Commissioner or an abdication of such power in his favour. There were variqus other contentions to which it is not necessary to refer. In the same case the validity of the State Transport Facilities Act, 1946 was also in question. Under the 1946 Act, however, detennination or decision of th-e Commissioner was to be submitted to the Minister for his confirmation. Stable J. described this provision as one under which 'the commissioner had Parliamentary hand on his shoulder'. After referring to the various provisions of the Acts as well as the powers of the Queensland Legislature the Privy Council rejected the argument that the effect of the Acts was to create new legislative authority. The Privy Council pointed out that it cannot rationally be said that there was any abandonment or abdication of power in favour of newly created legislative authority, and referred to the observations of the Privy Council in the The Queen v. Burah (supra). The Privy Coun-{ cil then went on to point out that nothing comparable with "a new legislative power" armed with "general authority" has been created by the passing by the Qneensland Legislature of the various Transport Acts. Reference was then made to the decisions in Hodge v. Thi Queen([2]) and Powel v. ApoUo Candle Company Ltd. (3) and it was pointed out that the Queensland Legislature preserved its own capacity intact and retained perfect control over the Commissioner for Transport. It was in that context that they added "inasmuch as it could at any time repeal the legislation and withdraw such authority and discretion a~ it had vested in him". This portion of the observa•1ons cannot be re Ired upon in every case where the question of excessive delegation arises to justifv it merelv on the ground that it is open to the legislature to repeal the legislation and withdraw the authoritv. This would be apparent from the extract from the judgment of Stab[1]e J. which im-I mediately follows thereafter :

"Obviously )'larliament cannot directly concern itself with all the multitudinous matters and considera•ious which necessarily arise for daily and hourly determination within

itself

(1) [1967] 1A.C.141.

(2) (1883) 9 App. Cas. 117 P. C.

(3) (1885) 10 App, Cas. 282 P. C.

the ramifications of vast transport system in great area in the fixing of and collection: of licensing fees. So, as I see it on the face of the legislation, Parliament has lengthened its own arm by appointing commissioner to attend to all these matters including the fixing and gathering of the taxes which Parlia~ent itself has seen fit to impose. The commis-sioner has not been given any power to act outside the law as laid down by Parliament. Parliament has not abdicated from any of its own power. It has laid down framework, set of bounds, within which the perso11 holding the office created by Parliament may grant, or refrain from granting licences, and fix, assess, collect or refrain from collecting fees which are taxes."

and the succeeding observations to the following effect

"The legislature were entitled to use any agent or any subordinate agency or any machinery that they considered appropriate for carrying out the objects and purposes that they had in mind and which they designated. They were en-titled to use the Commissioner for Transport as their instru-me11t to fix and recover the licences and permit fees. They were not abrogating their power to levy taxes and were not transferring that power to the commissioner. What they created by the passing of the Transport Acts could not rea-sonably be described as new legislative power or separate legislative body armed with general legislative authority (see R. v. Burah, 3 App. Case. 889). Nor did the Queensland legislature "create and endow with its capacity new legisla-tive power n'pt created by the Act to which it owes its own existence" (see In re The Initiative and Referendum Act. 1910 A.C. 945; 35 TLR 630 P.C.). In no sense did the Queensland Legislature assign or transfer or abrogate their powers or renounce or abdicate their responsibilities. They did not give away or relinquish their taxing powers. All that was done was done under and by reason of their autho-rity. It was by virtue of their will that licence and permit fees became payable."

We agree with the view taken by the majority of this Court in Gwalior Rayon Mills' case. In the result we hold that the Kerala Act, the 1965 declaration under section 2(a) and the 1968 Surcharge Order Uf\der section 3 are all valid.

The result is that the apoeals wil! have to be allowed; but in Civil Aooeals Nos. 1425, 2575, 2576 of 1972 and 97, 1373 and 1374 of 1973 question regarding Article 14 has been raised which has not been considered by the High Court. In these cases the High Court will deal with that question alone and dispose of the matter afresh.

In Civil Appeal No. 1372 of 1973 the resoondent is what is called sanction: holder under section 28 of the Indian Electricity Act, 1910

and as such licensee within the moaning of that term in clause ( 6) of section 2 of the Electricity (Supply) Act, 1948. The respondent has no objection to collecting the surcharge from those to whom it •upplies electricity. The respondent's contention is limited one that it need not pay surcharge on the electricity which it consumes. We consider this contention well founded and it is supported by the provi-sions of clause (3) 2,nd (8) of the Surcharge Order which read together leave no room for doubt on that point. Clause (3) reads as follows :

"3. No'.withstanding anything to the contrary contained in any agreement entered into with any consumer or the condi-tions of service agreed upon by the Kerala State Eiectricity Board; the Kerala State Eiectricity Board shall levy sur-charge in accordance with clause 5 on all supplies of electrical energy made by it either directly or through licensees :

Provided that no surcharge under this Order shall be levied on-

(a) Bulk supplies of energy to the licensees;

(b) Low Tension supplies of energy for domestic residen-tial purposes;

( c) Low Tension supplies of energy for agricultural pur-poses."

The respondent is licensee and bulk supplies have been made to the licensee. It is not consumer to whom the Board supplies electrical energy directly or through licensee. It cannot be said that in con-suming electricity itself the respondent is supplying electricity to itself. The Surcharge Order clearly makes distinction between the consumer on the one hand and the licensee on the other and makes no provision for s.urcharge in the case of consumption of electridty by licensee. It WCJ!Uld be therefore declared that the respondent in this appeal need not pay the surcharge on the electricity consumed by it. There will be no order as to costs.

GUPTA, J. I regret I am unable to agree that the Kerala Essential Articles Control (Temporary Powers) Act, 1961 and the declaration and the surcharge order made respectively under ss. 2(a) and 3 of that Act are valid. In my opi11io:1 the Kerala act i:- nn invalid piece cf legislation and as such the declaration and the rnrcharge orders me of no consequence. It is not necessary to restate the facts which have been set out fully in the Judgment of brother Alagiriswami J.; J shall briefly state the reasons for the view I have taken.

The State Lagislature has power to mnke laws only with regard to matters specified in List II and List I!Lin the Seventh Schedule of the Constitution subject to the provisions of Art. 254(2). The Kerala Act, as its long title shows, is nn Act to provide for the control of the produc-

tion, supply and d:istribution of, and trade and commerce in, "certain articles'·. The Preamble of the Act also states that It was passed as It · was C(}nsidered expedient to provide for the control of the production, supply and distribution of, and trade and commerce in, "cei-tain articles'', Sec. 1(3) of the Act provides that the Act would remain in force for five years from the date of its commencement which was in January 1962 . Sec.3(1) empowe.rs the State Government to make provisions by noufied 011cter for regulating or prohibiting the production. supply and distribu-tion of any 'essential article' and trade and ~ommerce therein if the Gov·~rnmcnt thought it was expedient so to do for maintaining or in-. creasing the supplies or for securing the equitable distribution of such essential articles. Sec. 2(a) defines essential article as any article not being an essential commodity as defined in the Essential Commodities Act, 1955 which the Government by notifitd order might declare to be an essential article. The definition leaves it to State Government to decide what should be an essential article for the purpose of the Act. The Legislature is of course presumed to know the limits of its com-petence and assuming it is permissible to attribute similar knowkdge to the Government as to the bouncls of its authority under sec. 2(a), an essential article may be any article covered by any of the. entries in List II or List III except the classes of commodities mentioned as essential commodity in the Essential Commodities Act. Until therefore, the Government issued notification on December 10, 1965 under sec. 2(a) declaring electrical enorgy to be an essential article almost four years after the act came into force, it was not possible even to guess what the Act was about. Thus the Act as passed had no positive con-tent. it was an empty husk and its insubstantiality, if by itself nol an in-validating factor, exposes the want of declared legislative policy in the Act. The Act does not give any indication as to the nature of the articles in respect of which it sought to control the production, supply and distribution. and trade and commerce. It confer on the Govern-ment the authority to declare any article an essential article and to exercise the aforesaid powers in respect of that article. The Act does not provide any guidance or lay down any test to ascertain what makes an article essential for the purpose of the Act. The refer·ence to the Essential Commodities Act in sec. 2 (a) which defines 'essential article' is merely to exclude from its purview the commodities covered bv the Essential Commodities Act., and only S·erves to emphasize its indefinite-ness and makes it more difficult to find any clue to the nature of the articles the Legislature had in minld in enacting the Kerala Essential Articles Control (Temporary Powers) Act, 1961. Almost the entire legislative field was left open to the Government to choose from and decide according to their own lights what should be an essential article.

It hardly needs repetition that the Legislature cannot delegate the essential legislative function, which means that the Legislature must de-clare the policy of the law and provide standard for the guidance ofi the subordinate J aw·making authority. The Kerala Act authorises the Government to declare anv article as essential, except those mentioned in the Essential Commodities Act, without. laying down any definite criteria or standards. This, I th.ink, is surrendering unguided and un-

canalised power to the executive. I do not see how the Act can be I called an instance of conditional legislation-this is not case where the Legislature having determined the policy has left the details to be supplied by the executive authorJty. I cannot think of case where the Legislature's self-effacement could b(j more complete. In my opinion the power conferred on the Government by the Kerala Act exce-~ds the limits of permissible delegation.

I may now refer to another aspect of the case. As stated earlier, the Kerala Essential Articles Control (Temporary Powers) Act, 1961 came into operation in January 1962 and was to remain irl force for five years from the date of its commencement. However. the life of the Act was extended by successive amending Acts passed in 1967, 1969 and 1970. Art. 254(2) of the Constitution provides :

"Where law made by the Legislature of State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to 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 in that State :

Provided that nothing in this clause shall prevent Parlia-ment from enacting at any r.ime any law with respect to the same matter including law adding to, amending, varying or repealing the Jaw so !flade by the Legislature of the State."

It appears that the President had given his assent to the principal Act of 1961 and also to the successive amending Acts extending the life of the principal Act. The Act as at was passed in 1961 does not appear to contain any provision which was repugnant to any Central Act or existing law, that being so, the assent given to it seems redundant and of no consequence. Obviously, Art. 254(2) contemplates an existing repugnancy and not possible future inconsistencies. On December 10, 1965 the State Government issued notification declaring\ electrical energy to be an essential articld under sec. 2(a) of the Act, and on June 1, 1968 the State Government made the Kerala State Electricity Supply Surcharge Order in exercise of the powers conferred by sec. 3. The surcharge order made in 1968 following the declaration of electrical energy as an essential article in 1965 is said to be in conflict with the provisions of the Indian Electricity Act, 191 O and the Electricity Sup- • ply Act, 1948: Both these Acts are existing laws. It was argued that assent of the President received for the amending Acts of J 967, 1969 and 1970 cured the repugnancy introduced by the surcharge order. Assuming tha~ assent ,given to the a,mending Acts would have '~he . effect of curingi the repugnancy, if any, in the principal Act, the ques· · tion remains. where the declaration and the surcharge orl:ler part of the Act under which they were made ? If they were not, if the order dec-laring electrical energy as an essential article and the surcharge order were outside the Act, then the assent given to the Act could not cure

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the repugnancy arising from these two orders. Art 254(2) requires the State legislatfon containing the repugnant provision to be reserved for the consideration of the President before he gives his assent to it. Could it be said that the declaration and the surcharge order were provisions in the Kerala Essential Articles Gontrol (Temporary Powers) Act, 196 I '' This Court considered similar question though in different context in Chief Inspector of Mines v. Lala Karam Chand Thappar.(') In that case this Court was examining the effect of the repeal of the Mines Act, 1923 on the regulations framed under that Act Mines Act, 1923 was repealeU and was re-enacted with certain modifications as the Mines Act, 1952. Sec. 29 of the 1923 Act em-powering the Central Government to make regulations consistent with the Act for specified purposes was reenacted in the 1952 Act as Sec. 57, Regulations w~reJ made in 1926 under sec. 29 of the 1923 Act, but no regulations had been made under sec. 57 of the 1952 Act at the relevant date in l 955. The question was whether in view of sec. 24 of the General Clauses Act the Mines Regulations of 1926 could be said to have been in force at the relevant date as there was notr:ing in the late.- Act providing otherwise, and the regulations were not inrnr.-sistent with the re-enacted provisions. Sub-sec. ( 4J) of ~ec. 31 of the 1923 Act laid down, inter-alia, that regulations and rules made under tlie Act would have the effect "as if enacted in this Act" Overruling the contention that the regulations became part of the Act in view of sub-sec. ( 4) of sec. 31 and that with the repeal of the Act the regula-tions also stood repealed as part of that Act, this Court observed at page 23 of the report :

"The true position appears to be that the rules and regu-lations do not lose their character as rules and regulations, even though they are to be of the same effect as if contained in the Act. They continue to be rules subordinate to the Act, and though for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as subordinate rule is not lost." •

There is thus at least one \lecision of this Court which seems to support th~ view that the orders made by the State Government, under sec. 2(a) and sec. 3(1) of the impugned Act could not be called part of the Act; this Act does not even say that such orders are to be treated as if en-acted in the Act. This is an important aspect of the case, and I do not think it can be assumed or taken for granted without further consider-ation that these orders formed part of the Act and the President's assent

[1976] 1 s.c.~.

to the Act cured the repugnancy created by the surcharge order. How-ever, as I have already held the Act to be invalid on the other ground, I prefer not to express any concluded opinion on this point.

In my judgment the Kerala Essential Articles Control (Temporary Powers) Act, 1961 is invalid on the ground of excessive delegation. I would therefore dismiss the appeals: but without any order .as to costs.

ORDER

Jn view of the decision of the majority, t.he appeals are allowed and Civil Appeals Nos. 1425, 2575, 2576 of 1972 and 97, 1373 and 1374 of 1973 are remanded to the High Court. There will be no order as to costs.

P. B. R.