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PETITIONER: THE STATE OF RAJASTHAN

       Vs.

RESPONDENT: SHRI G. CHAWLA AND DR.  POHUMAL

DATE OF JUDGMENT: 16/12/1958

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, SUDHI RANJAN (CJ) DAS, S.K. GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1959 AIR  544            1959 SCR  Supl. (1) 904  CITATOR INFO :  F          1960 SC 424  (11)  R          1970 SC 999  (5)

ACT: Legislative  Competence-Validity  of  enactment-Control   of Sound  Amplifiers -Pith and substance  of  legislation-Ajmer (Sound  Amplifiers Control) Act, 1952 (Ajmer 3 of 1953),  s. 3-Government  of Part C States Act, 1951 (49  of  1951),  S. 21-Constitution of India, Sch.  VII, List 1, Entry 31,  List 11, Entries 1, 6.

HEADNOTE: The Ajmer (Sound Amplifiers Control) Act, 1952, was  enacted by  the  Ajmer Legislative Assembly which, by S. 21  Of  the Government of Part C States Act, 1951, was empowered to make laws for the whole or any part of the State with respect  to any  of the matters enumerated in the State List or  in  the Concurrent List.  The respondents were prosecuted under S. 3 Of  the  Act  for breach of the  conditions  of  the  permit granted  for  the use of sound amplifiers.  On  a  reference under  s.  432  of  the Code  of  Criminal’  Procedure,  the judicial Commissioner of Ajmer held that the Act fell within Entry NO. 31 of the Union List and not within Entry No. 6 of the State List as was claimed by the State, and,  therefore, was ultra vires the State Legislature. Held,  that the pith and substance of the impugned  Act  was the  control  of the use of amplifiers in the  interests  of health   and  also  tranquillity  and  thus  the   Act   was substantially within the powers conferred by Entry No. 6 and conceivably  Entry No 1 of the State List, and did not  fall within  Entry  No.  31 of the Union List,  even  though  the amplifier, the use of which is regulated and controlled,  is an    apparatus   for   broadcasting    or    communication. Accordingly, the Act was intra vires the State Legislature. 905

JUDGMENT:

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CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  1  of 1955. Appeal  from the judgment and order dated October 13,  1954, of  the  former  Judicial Commissioner’s  Court,  Ajmer,  in Criminal Reference No. 31 of 1954. H. J. Umrigar and T. M. Sen, for the appellant. The respondents did not appear. 1958.  December 16.  The Judgment of the Court was delivered by HIDAYATULLAH,  J.-This appeal was preferred by the State  of Ajmer,  but after reorganisation the b of States, the  State of  Rajasthan stands substituted for the former  State.   It was filed against the decision of the Judicial  Commissioner of  Ajmer, who certified the case as fit for appeal to  this Court under Art. 132 of the Constitution. The  Ajmer  Legislative Assembly enacted  the  Ajmer  (Sound Amplifiers   Control)   Act,  1952  (Ajmer   3   of   1953), (hereinafter  called the Act) which received the  assent  of the  President on March 9, 1953.  This Act was  successfully impugned  by  the respondents before  the  learned  Judicial Commissioner,  who held that it was in excess of the  powers conferred  on  the  State Legislature under  s.  21  of  the Government  of  Part C States Act, 1951 (49  of  1951)  and, therefore, ultra vires the State Legislature. The  respondents  (who  were absent  at  the  hearing)  were prosecuted under S. 3 of the Act for breach of the first two conditions of the permit granted to the first respondent, to use  sound  amplifiers  on  May  15  and  16,  1954.   These amplifiers, it was alleged against them, were so tuned as to be audible beyond 30 yards (condition No. 1) and were placed at  a height of more than 6 feet from the ground  (condition No.  2).   The  second respondent was at  the  time  of  the breach, operating the sound amplifiers for the Sammelan, for which permission was obtained. On  a  reference  under  s. 432  of  the  Code  of  Criminal Procedure, the Judicial Commissioner of Ajmer held that  the pith and substance of the Act fell within 114 906 Entry No. 31 of the Union List and not within Entry No. 6 of the State List, as was claimed by the State. Under Art. 246(4) of the Constitution, Parliament had  power to  make  laws for any Part of the territory  of  India  not included   in   Part  A  or  B  of   the   First   Schedule, notwithstanding that such matter was a matter enumerated  in the  State  List.  Section 21 of the Government  of  Part  C States Act, 1951, enacted: " (1) Subject to the provisions of this Act, the Legislative Assembly of a State, may undertake laws for the whole or any part  of  the  State  with respect to  any  of  the  matters enumerated in the State List or in the Concurrent List, (2)  Nothing  in  subsection ( 1) shall  derogate  from  the power  conferred on Parliament by the Constitution  to  make laws  with  respect to any matter for a State  or  any  part thereof." Under  these provisions, the legislative competence  of  the State  Legislature was confined to the two Lists other  than the Union List.  If, therefore, the subjectmatter of the Act falls  substantially within an Entry in the Union List,  the Act  must  be  declared to be unconstitutional,  but  it  is otherwise,  if it falls substantially within the  other  two lists, since prima facie there is no question of  repugnancy to a central statute or of an " occupied field". The  rival Entries considered by the  Judicial  Commissioner read as follows:

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Entry No. 31 of       Post and Telegraphs; Telephones, wire- the Union List.       less,broadcasting and other like forms                of communication. Entry No. 6 of        Public health and sanitation; hospita- the State List.       ls and dispensaries. The  attention   of the learned  Judicial  Commissioner  was apparently not drawn to Entry No. 1 of the State List, which is to the following effect: Entry No. 1 of        Public order(but not including the use the State List.       of naval,military or air forces of the                Union in aid of civil power.) 907 Shri H. J. Umrigar relied upon the last Entry either  alone, or  in combination with Entry No. 6 of the State, List,  and we are of opinion that he was entitled to do so. After  the  dictum of Lord Selborne in Queen v.  Burah  (1), oft-quoted and applied, it must be held as settled that  the legislatures  in  our  Country  possess  plenary  powers  of legislation.   This  is  so  even  after  the  division   of legislative  powers, subject to this that the  supremacy  of the  legislatures  is confined to the  topics  mentioned  as Entries in the Lists conferring respectively powers on them. These Entries, it has been ruled on many an occasion, though meant to be mutually exclusive are sometimes not really  so. They occasionally overlap, and are to be regarded as  enume- ratio  simplex  of broad categories.  Where  in  an  organic instrument  such enumerated powers of legislation exist  and there is a conflict between rival Lists, it is necessary  to examine the impugned legislation in its pith and  substance, and  only  if that pith and  substance  falls  substantially within an Entry or Entries conferring legislative power,  is the  legislation valid, a slight transgression upon a  rival List, notwithstanding.  This was laid down by Gwyer, C.  J., in  Subramanyam Chettiar v. Muthuswamy Goundan (2),  in  the following words: "  It  must  inevitably  happen  from  time  to  time   that legislation, though purporting to deal with a subject in one list,  touches  also on a subject in another list,  and  the different  provisions  of the enactment may  be  so  closely intertwined  that  blind  adherence  to  a  strictly  verbal interpretation  would result in a large number  of  statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere.   Hence the  rule which has been evolved by the  Judicial  Committee whereby  the impugned statute is examined to  ascertain  its ’pith  and substance’, or its ’true nature  and  character’, for  the  purpose of determining whether it  is  legislation with respect to matters in this list or in that." This  dictum  was  expressly approved  and  applied  by  the Judicial Committee in Prafulla Kumar Mukherjee (1) (1878) 3 App.  Cas. 889. (2) [1940] F.C.R. 188, 201. 908 v.Bank of Commerce, Ltd., Khulna (1), and the same view  has been expressed by this Court on more than one occasion.   It is  equally  well-settled that the power to legislate  on  a topic of legislation carries with it the power to  legislate on  an ancillary matter which can be said to  be  reasonably included in the power given. It becomes, therefore, necessary to examine closely how  the Act  is  constructed and what it provides.  The Act  in  its preamble expresses the intent as the control of the use’  of sound  amplifiers.  The first section deals with the  title, the  extent, the commencement and the interpretation of  the Act.   It does not unfold its pith and substance.  The  last

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two  sections  provide for penalty for unauthorised  use  of sound amplifiers and the power of police officers to  arrest without   ",arrant.    They   stand   or   fall   with   the constitutionality or otherwise of the second section,  which contains the essence of the legislation. That section prohibits the use in any place, whether  public or  otherwise,  of any sound amplifier except at  times  and places and subject to such conditions as may be allowed,  by order in writing either generally or in any case or class of cases  by  a  police  officer  not  below  the  rank  of  an inspector,  but it excludes the use in a place other than  a public place, of a sound amplifier which is a component part of a wireless apparatus duly licensed under any law for  the time  being  in force.  In the explanation which  is  added, ’public  place’  is defined as a place  (including  a  road, street  or way, whether a thoroughfare or not or  a  landing place)  to  which the public are granted access  or  have  a right to resort or over which they have a right to pass. The gist of the prohibition is the use’ of an external sound amplifier  not  a component part of  a  wireless  apparatus, whether in a public place or otherwise, without the sanction in  writing of the designated authority and in disregard  of the  conditions  imposed on the use thereof.   It  does  not prohibit  the use in a place other than a public place of  a sound  amplifier  which is a component part  of  a  wireless apparatus. (1)  (1947) L.R. 74 I.A. 23. 909 There  can  be  little doubt that the  growing  nuisance  of blaring loud-speakers powered by amplifiers of great  output needed  control,  and  the short question  is  whether  this salutary  measure can be said to fall within one or more  of the  Entries  in the State List.  It must be  admitted  that amplifiers  are  instruments  of broadcasting  and  even  of communication,  and  in that view of the matter,  they  fall within Entry 31 of the Union List.  The manufacture, or  the licensing of amplifiers or the control of their ownership or possession,  including the regulating of the trade  in  such apparatus  is  one matter, but the control of the  ’use’  of such  apparatus though legitimately owned and possessed,  to the detriment of tranquillity, health and comfort of  others is quite another.  It cannot be said that public health does not demand control of the use of such apparatus by day or by night,  or  in  the vicinity of  hospitals  or  schools,  or offices  or habited localities.  The power to  legislate  in relation to public health includes the power to regulate the use of amplifiers as producers of loud noises when the right of  such  user,  by  the disregard of  the  comfort  of  and obligation  to  others, emerges as a  manifest  nuisance  to them.  Nor is it any valid argument to say that the pith and substance  of  the Act falls within Entry 31  of  the  Union List,  because other loud noises, the result of  some  other instruments,   etc.,   are  not   equally   controlled   and prohibited. The pith and substance of the impugned Act is the control of the  use of amplifiers in the interests of health  and  also tranquillity,  and thus falls substantially (if not  wholly) within  the  powers  conferred  to  preserve,  regulate  and promote  them and does not so fall within the Entry  in  the Union  List, even though the amplifier, the use of which  is regulated and controlled is an apparatus for broadcasting or communication.  As Latham, C. J., pointed out in Bank of New South Wales v. The Commonwealth (1): " A power to make laws ’with respect to’ a subjectmatter  is a power to make laws which in reality and substance are laws

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upon the subject-matter.  It is not (1)  (1948) 76 C.L.R. 1, 186. 910 enough  that  a law should refer to  the  subject-matter  or apply  to  the subject-matter: for example,  incometax  laws apply  to clergymen and to hotel-keepers as members  of  the public;  but  no  one would describe an  income-tax  law  as being,  for that reason, a law with respect to clergymen  or hotel-keepers.   Building  regulations  apply  to  buildings erected  for  or by banks; but such  regulations  could  not properly  be  described  as laws with respect  to  banks  or banking." On a view of the Act as a whole, we think that the substance of  the legislation is within the powers conferred by  Entry No. 6 and conceivably Entry No. 1 of the State List" and  it does  not -purport to encroach upon the field of  Entry  No. 31,  though it incidentally touches upon a  matter  provided there.  The end and purpose of the legislation furnishes the key  to connect it with the State List.  Our  attention  was not  drawn to any enactment under Entry No. 31 of the  Union List by which the ownership and possession of amplifiers was burdened  with  any such regulation or  control,  and  there being  thus  no  question of repugnancy or  of  an  occupied field,  we  have no hesitation in holding that  the  Act  is fully  covered by the first cited Entry and conceivably  the other in the State List. The  Judicial Commissioner’s order, with respect, cannot  be upheld,  and it must be set aside.  We allow the appeal  and reverse  the  decision, and we declare the Act  in  all  its parts  to  be  intra vires the State  Legislature.   As  the matter  is four years old we do not order a retrial  and  we record that the State does not, as a result of the  reversal of  the  decision  under appeal, propose  to  prosecute  the respondents,  and that a statement to this effect  was  made before us at the hearing. Appeal allowed. 911