ltAJLWAY BOARD, GOVT. OF INDIA

MIS OBSERVER PUBLICATIONS (P) LTD.

March 16, 1972

[S. M. SI~RI, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR

AND M. H. BEG, JJ.]

Constitution of India Art. 14-Indian Railway Code, Clause 742iVels-weekl, v-Sold by licensees at rai/wc..y bookstalls-Ban on sale of sucll ilews-wPekly-Ban is no1 ju.ti{i:Jd under c.'ause 742 sub-clause (V) if. the matter is not found tip be obscene but only bordering on obscenity- S1milar publications not banned-Ban is violative of Art. 14 of Constituiion.

The sale of the Indian Observer, a news "v-eekly, at railway platform5 was bunn-ed by an order of the appellant board in March 1965. The respondent \Vho was owner '3Ild publisher of the lndian Obser filed a writ petition in the High Court alleging that the ban had been imposed because the I!CV.'.~ weekly had carried certain articles which were critical of the Railway administration. The appellant's case in the High Court was that the ban had been imposed because the news eekly carried sexy and obscne matter. The High Court allowed the writ petition holding that similar publications were cllowed to be sold by the licencees of railway bookstalls and the ban on Indian Observer was tberefore discriminatory. The High .Court also held that under clause 742 of the Indian Railway Code the appelhnt had no authority to impose the ban. -In appeal against the High Court's decision.

HELD : (i) In the Indian Railway Code the policy and principle laid down in categorical terms in sub-clal!M> (viii) of Clause 74~ is that tlul contractor should Provide equal opportunity to a1J the popular news-- papers for £ale in lbeir atal!S on the same terms. This was subject to certain conditions one of wbil:l! in sub.clause (v) was t)lat tlul sale of

obscne books and pictures and publications by the government should be strictly b!l!llled. fj:ver lhP letter written by tho railway dared March 26, 1965 did not imDOSe the Inn on the 2round that Indian Observer was an obscene publication which had been prohibited by the government.

Jn that letter there wa. first a recital of what had come to the Board's notice i.e., that the articles written in the said news weekly well' in vry low taste bordering on obsi:eqity.

Tpere was no finding or

dcisipn Jbat it w::is ' pul>!ic.aton Wh.iCh J'I~ obscene.

Tlie conclusion of the Board simply was that the lndjap. Obsorver was not fit for al.e at Railway stations.

The other condition laid down in sub-clause (v) that its sale has been prohibited by the Government was neither m.entione~ nor had it l!een shown th~ anysuch order had been made by the gpvernment prol)ibiting the sale of t)le lndjan Observer on the ground that it was obscene.

The Central Government was not shown to have any po\\er under the Railways Act or rules thereunder to ban the sale of anv obscene book or publication and it was not claimed t})'3t the Railway Board could impose the ban under any other enactment. For the above reasons the order imp0sing the ban could not be justified under clause 742 of the Indian Railway Code.

(ii) The High Court had found as a fact that publications which were freely on sale :on the bookstalls to whom iicenc_e~ has been given were

•uch that they were hardly distinguishable from the Indian Observer on the ground of obsctmity. . It was not disputed before the High Court that 1he news weekly in question had been sold on railway platforms since 1963 nor .was it suggested that the Railway Board had ever acoorded individual sanction .for the sale of every single book and publication at the book stalls of the Railway Administration. The Railway Administration had itself directed th".lt the boOk stall cOntractors who were its licencees should provi<:le equal opportunity to all the popul!ll" newspapers for

ale in their stalls.

These vefy Coriractqrs were now being directed to discriminate betweenthe respondent and owners or publishers of other popular nwspaprs on grounds whi_ch had no legal basis or justification.

The administrative ct or order of the Railway Board ( whic\ll fell within the definition of 'State' in Art. 12 of the Constitution), could, therefore be challeng.ed by the appellant in a petition under Art. 226 of the Constitution as violative of Art. 14.

Since no proper or valid grounds had been shown for sustaining the discrimination made, the view of the• High Court that the impugned order of the Railway Board ms discriminatory must be upheld.

Roi/way Board v. Niranjan Singh, [19o9] 3 S.C.R. 548, distinguished.

(iii) Judicial propriety and decorum demand that a Bench while consi- <lering the question of granting a certificate for •appeal to this Court ought not to be critical of or express any dissent from the judgment appealed D against because it has not such jurisdiGtion and all that it has to decide is whether tl].e requirement of the Articles of the Constitution on which a certificate can be gr3nted have been satisfied.

C1v1L APPELLATE JURISDICTION : Civil Appeal No. 2097 of 1968.

Appeal from the judgment and order dated August i1, 1965 E -Of the Delhi High Court in C.W. No. 197-D of 1965.

Jagdish Swarup, Solicitor-General of India, S. N. Prasad, B. D.

Sharma and S. P. Nayar, for the appellant.

S. C. Manchanda, S. Balakrishrlan and P. N. Lekhi, ibr the respondent.

The Judgment of the Court was delivered by

Grover, J.

This is an appeal by certificate from a judgement of the Punjab High Court by which the petition under Art. 226 of the Constitution filed by the respondent was allowed and the ban imposed on the sale of a news weekly called "The Indian Observer" by the licensees of the Railway Book Stalls throughout the country under directions issued by the appellant was set aside.

A9cording to the writ petition, the petitioner was the owner and publisher of a weekly newspaper known as "The Indian Observer" which had a wide 'sale in India, its weekly circulation being approximately 1,3.5,000 copies. Till March 1965 the aforesaid news weekly was being sold at all the railway stations

A which were managed and were under the administrative control of the Railway B.oard. It was 'alleged that the policy of the news weekly was to publish a constructive criticism and fair comment in public interest on the working of different departments of the Government and to suggest remedial measures.

In some of the copies of the news weekly, certain matters regarding the mal- B administration of the Railway had been published.

Reference was made in particular to the issue of II th September, 1964 in which allegations were made about the black-marketing in deluxe train tickets.

It was stated to have attained the magnitude of a big racket operating in the country resulting in lot of gain by . corrupt means to the Railway staff.

It is unnecessary to give the c details but according to the allegations made in the news weekly, the Railway staff was corrupt and the reasons for the corruption were also given.

Other comments we_c made which reflected adversely on the working of the Indian Railways.

According to the petitioner all these statements and resolutions annoyed the Railway Authorities and on 22nd September, 1964, the Circulation Manager of the Petitioner company received a letter from D M/s. M. Guiab Singh (P) Ltd., one ol the licensees, of the Railway Board for sale of printed matters intimating that the Northern Railways administration had banned the sale of "The Indian Observer" on the Railway Book Stalls.

Subsequently, when the petitLoner took up the matter with the authorities concerned, the General Manager, Northern Railways, wrote to him informing E him that temporary permission had been given to the railway contractors of printed matters to sell the news weekly subject to proper review of that paper and final orders which would be given later.

The General Manager asked the petitioner to supply copies of 12 old issues which was done.. Finally, the petitioner was informed by means of a letter datea the 16th March 1965 that the .F sale of the weekly "The Indian Observer" could not be permitted on the railway stations.

In the return which was fi_le.d by the Joint Director, Traffic (General), Railway Board, it was not denied that the news weekly "The Indian Observer" was being sold at the railway stations by the licensed contractors. It was asserted that the petitioner had been publishing "sexy and obscene literature'.' and the licensees had been raiing objections on this score.

The articles published in the news weekly were considered to be of low taste and it was decided that it would not be in public fnterest to allow its sale at the railway platforms by the licencees.

The allegations made in the petition abcut the statements relating to corruption and mal-administration in the Railways which had been published in some of the issues of the news weekly was not denied. It was, howex\lr, maintained that the Railway Board had taken the action

SUPREME COURT REPORTS [1972] 3 S.C.ll.

not because of the publicauon of those articles but bc; cause of the sexy and obsceile literature of low taste which was being published in the news weekly.

Before the High Court, s. 28 of the Indian Railways Act 1890, hereinafter called the "Act"; and the relevant sub-clauses of clause 742 of.the Indian Railway Code were pressed into service for chalienging the ban which had been imposed on the sale of the news weekly.

The High Court was of the view that the petitioner before it had cited and produced instances of publications which were freely on sale on the bookstalls on the railway platforms to show that the material which was sought to be excluded 011

ground~ on obscenity, was hardly distinguishable from the othe1 popular magazines of foreign and Indian origin.

Reliance was placed on the provisions of clause 742 of the Indian Railway Code which established that a publication to attract the ban imposed by the Railway Board must have been previously prohibited by the Government.

As the Railway Board was not authorised to exclude any publication from sale on its own determination that it was obscene, it was held that the order whiCh was made by that Board was without authority.

The ban had hit the writ petitioner who had been made the object of discriminatory treatment.

Consequently, the restriction imposed on the sale of "The Indian Observer" was quashed.

Section 120A of the Act which was inserted for the first time by Act No. 13 of 1959 provides that if a person canvasses for any custom or hawks or exposes for sale any article whatsoever, in any railway carriage or upon any part of arailway except under and in accordance with the terms and conditions of a licence by the railway administration shall be punishable with fine which may extend to two hundred and fifty rupees.

He can also be removed from the carriage or any part of the railway by any railway servant so authorised. It appears that prior to the insertion of this section, rules had been framed under s. 4 7 (1) of the Act.

Rule 17 of Part II of the. Ru]es .laid clOwn that no person could canvass for any custom or hawk or expqse for Sale any article whatsoever, on any train, station, platform or premi, ses without a licence granted by the railway administrati9n.

Clause I of Rule 17 has been incorporated ins. 120A(l) of the Act in 1959, that clause having been deleted from the rule.

The bookstalls on the railway platforms where books, manazines and newspapers are sold, belong to the licencees who have en\ered into an agreement with the President. of India-. It is not disputed that according to the usual clauses in these agreements of licence, the sale of newspapers shall not be stopped by the licencees at any ' time save When it is due to causes beyond the control of the

RAILWAY BOARD v. OB"SERVE!t PUBLICATIONS (Qrbver, J.) 869

A licensee.

The !tamed Solicitor Ocnerit1 pl!OOuoed a sample agree-- meilt iri court which was not objected to by the oounsel for the respondent.

According to clause 3(b) thereof the licensor can reserve to bimself the right to reqilire the licencee to sell specitied books or types of books and periodicals and the lice!lCet was bound to comply with such requirements, Under clause 5 the B licensor had the right of prdhibitiilg the sale ot exhibition of any

publi, cation of an obscene or scurrilous nature and of any publication to which good, sufficient, and reasonable objections co9ld be shown and the decision of the licensor was to be final and binding on the licensee .

The Railway Board whicli is the appellant bef01e us has issued certain instructions and laid down essential principles and policy directions which have been oublimed in the form of a Code called the "Indian Railway Code" -for the Traffic Department ( Coinmercial). It may be mentioned that the Solicitor General himself maintained that aUthose were of a mandatory nature and it is ,:i stated in the preface to the Code.

Chapter VII, Part A of this Code de!ils With . catering and vending services.

Part n relates fo book-stalls, sale of npapers and _periodicals on railway platforms. Clause 742 to the extent it is material is reproduced below:"--

G ..

( v) The sale of obscene books and pictures and 'pub-

J:'icatit\ns iproln'bited by the Government sh®ld. be strictly banned . . . . . . . . . . . . . . . . . . .. • ...... . (viii) Tlte contractors mot!ld prO'Viile equal opportu- .niW to. all the popular newspapers for sqle in

therr. stal~ on_ the same term~. A list -6f popular newspaJlCrs a_nd maga.ifues shou_ Ia be drawn up

b~ the 'Railway Adiriiriistra:iion 'ih OODSUltatioo with the ZOnal 'Railway Boeiksta11 AdviSOryCommitte'e".

. the ml)in argument <if j; lie jean!Ctj. Stlli¢1tor '6enersl 011 behalf _of the appellant is that sale of ljooirson Pailway pllltfbnns or In

railway -i; arrias is a ni.atter filch Is regUtated by tlie terms of the agreement of licence between the bookstall contractots alUI the railway authorities and it 'is open to the appropriate authOtity . to S!OP the sale of any newspaper or 'pnbncation Which was considered obscene or urriloos or to wlilch suflfoiertt and reasonaMe

objection~ could be SbOWI!. li1 t:he letter of tt1e Railway. "Soard elated March 26; I965 it was stated that it had come to the Board's

notice that the "Indian Observer" generally contained "articles A written in very low taste bordering on obscenity". It was further stated that after a perusal of few copies of the said weekly the Board had come to the conclusion that it wa~ not fit for sale at railway stations.

It was desired that the book stall contractors should be instructed to stop with immediate effect the sale of the "Indian Observer" from their bookstalls as well as on the plat- B forms as also along train side and in station premises.

According to the Solicitor General the action taken by the Railway Board was petfectly competent and was taken in accordance with the terms of the licence grnated to the book stall contractors. It is urged that the respondent had no right or locus standi to insist on or ask for the sale of the Indian observer on the platforms etc., which are the private property of the railway and where the sale c of any publication could only be subject to such terms and conditions as obtained between the licensor or licencee.

Before the High Court and before us the main complaint of the present respondent is based on an infraction of Article 14 of the Constitution and it has been asserted that the news weekly D "Indian Observer" was singled out for discriminatory treatment inasmuch as publications containing similar material were not prohibited from sale by the Railway Board on the book-stalls at the platforms and in the trains etc.

The High Court had found as a fact that publications which were freely on sale on the bookstalls to whom licences had been given were such that they were hardly distinguishable from the "Indian Observer" on the ground of obscenity. It was not disputed before the High Court that the news weekly in question had been sold on railway platforms since 1963 nor was it suggested that the Railway Board had ever accorded individual sanction for the sale of every single book and publication at the book stalls of the Railway Administration.

Now in the Indian Railway Code the policy or the principle laid down in categorical terms in sub-clause (viii) of Clause 742 is that the contractor should provHle equal opportunity to all the popular newspapers for sale in their stalls on the same terms. This was subject to certain conditions, one of which was that the sale

of obscene books and pictures and publications prohibited by the G Government should be strictly banned. (vide sub-clause v).

The letter written by the railway itself to which a reference has been made, does not impose the ban on the ground that the "Indian Observer" is an obscene publication which has been prohibited by the Government.

In that letter there was first a recital of what had come to the Board's notice i.e. that the articles written in the said news weekly were. in very low taste bordering H on obscenity.

There was no finding or decision that it was a publication which was obscene.

The conclusion of the Board

A simply was that the "Indian Observer" was not fit for sale at the Railway stations.

The other condition laid down in sub-clause ( v) that its sale had been !Jrohibited by the government was neither mentioned nor has it been shown that any such order !iad been made by the government prohibiting the sale of the "Indian Observer" on the ground that it is obscene.

The learned Solicitor 11 General contends that the word 'Government' in sub-clause' ( v) means the Railway Board because according to s. 2 of the Indian Railway Board Act 1905, Central Government may by notification in the official gazette invest the Railway Board either absolutely or subject to conditions with all or any of the powers or fonctions of the Central Government under the Act.

Our attention has not C been draw_n to any provision in the Act or the rules framed there under by which the Central Government can prohibit the sale of any obscene book, picture or publication.

It appears that the aforesaid clause has reference to a prohibition imposed by the Central Government und'er some enactments other than the Act.

It is not claimed that the Railway Board could impose a ban under any other enactment.

Nor has it been suggested that the Central D Government had passed any order prohibiting the sale of the Indian

Observer under any statutory provision. \ ' Even on the assumption that the Board could make such an order as is contemplated by sub-clause (v) of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was nowhere stated that the publication of.the. news weekly was being banned on the ground of obscenity.

It is thus apparent that the High Court was fully justified in taking the view that the "Indian Observer" had been singled out for being banned and this clearly amounted to a discriminatory treatment.

The question that has next to be resolved is whether Art. 14 could be invoked by the respondent in the present case. It has not been and indeed cannot be disputed that the Railway Board will fall within the definition of "State" as given in Art. 12 of the Constitution.

The learned Solicitor General has relied on Railway. Board v. Niranjan Singh('). It was laid down that there was no fundamental right under Art. 19 ( 1) for anyone to hold meetings in government premises.

The Northern Railway was the owner of the !Jremises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them.

We are unable to appreciate how the ratio of that decision could be applied to the present case.

The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office compounds.

Railway platforms may be the property

(!). [1969.J 3 S.C.R, 548.

of the railways, but it cannot be disputed rtlat every bona fide tra• A veller or every other member of. the public who buys a platform ticket can have access to tire railway platforms. h is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station paltform or any part of the railway premises any person who is not a bona fide passenger and who does not have any business connected with the railway or any person who having arrived at a station by train and having no business connected with the railway refuses to leave the' railway premises when required to do so.

But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is no analogy between a station platform and a government office.

Even otherwise the crux of the matter is that the respondent is not c

 seeking to use the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there.

All that the respondent says is that the railway administration has itself directed that the bookstall contractors who were its licensees should •provi<je equal opportunity to all the popular newspapers for sale in. their stalls.. These very D contractors ; tre now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have no legal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under Art. 14.

The respondent is not asking for the enforcement of any such fundamental right as would come within. E the rule laid down in the previous decision of this Court.

In other words what the present respondent is ch.allenging is the order of the Railway Board which led to the stoppage of 'the sale of the news weekly on the Railway platforms etc. If that order is discriminatory and cannot be justified on any of the well known grounds. the res!JOndent can challenge it in a oetitiori. under Art. 226 of the Constitution as violative of Art.

14. There is no parallel between the facts of this case and the deeision relied upon . by the learned Solicitor General.

We concur with the view of the High Court that the impugned order of the Railway Board was discriminatory.

No proper 9r valid grounds have been shown for sustaining the discrimination made.

A certain amount of discussion took place before us with regard to the applicability of s. 28 of .the Act which contains prohibition against undue preference being shown by the Railway Administration in any respect whatsoever. In the. view that we ll have taken about the applicability of Art. 14 we do not consider it necessary to decide whether the respondent could take advantage of the provisions of that section.

Lastly, we may refer to a preliminary objection which was raised on behalf of the respondent to the certificate which was granted by the High Court. It has been urged that the certificate is defective because in the order dated July 7, 1968 granting it the Bench has Virtually given a decision as if an appeal was being entertained against the judgment dated August 11, 19.65 by which B the writ petition was allowed. It does appear that hpande J ., who delivered the order of the Division Bench granting the certificate :has made certain observations which seem to suggest that the previous decision was incorrect.

Although such an order will not per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while considering the question of grant- C ing a certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment apaled against because it has no such furisdiction and all that it has to decide is whethet the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied.

The appeal fails and it is dismissed with costs.

G.C.

Appeal dismissed.

ltAJLWAY BOARD, GOVT. OF INDIA

MIS OBSERVER PUBLICATIONS (P) LTD

March 16, 1972

A. N. GROVER

A. N. RAY

D. G. PALEKAR

M. H. BEG, JJ.

Constitution of India

Art. 14

Indian Railway Code

Clause 742

Art. 14

clause 742

Clause 74

March 26, 1965

Central Government

Railways Act

clause 742

Art. 12

Art. 226

Art. 14

Jagdish Swarup

S. N. Prasad

B. D.

Sharma

S. P. Nayar

S. C. Manchanda

S. Balakrishrlan

P. N. Lekhi

Grover

Punjab High Court

Art. 226

India

II th September, 1964

Indian Railways.

22nd September, 1964

Northern Railways administration

Northern Railways,

16th March 1965

SUPREME COURT REPORTS [1972] 3 S.C.ll

s. 28

Indian Railways Act 1890

clause 742

clause 742

Section 120A

s. 4

Clause I of Rule

clause 3(b)

clause 5

Indian Railway Code

Part A of this Code

Clause 742

Article 14

Now in the Indian Railway Code

Clause 742

s. 2

Indian Railway Board Act 1905

Central D Government

clause 742

Art. 14

Art. 12

Art. 19

Northern Railway

Art. 14

Art. 226

Art.

14

s. 28

Art. 14

August 11, 19.65

hpande


GANGADHAR NARSINGDAS AGARWAL

P. S. THRIVIKRAMAN & ANR.

March 16, 1972

[S. M. S!KRI, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR

AND M. H. BEG, JJ.]

Tariff Act 1934-S. 44-Whether notification under S. 44 is appli cable to the facts and circum.tances of the case.

The appellant on 26th July 1966 filed shipping bill in triplicate before the Joint Chief Controller of Imports and Exports for the purpose of obtaining export licencs in respect of 10,160 metric tonnes of iron ore.

On 28 July 1966 export licenee was granted to the appell'111t.

On 30 July 1966 the agents of the vessel made an application to the Asst!. Collector of Customs, for the grant of entry outward to the said vessel to load i!ron ore, which was granted on the same day with pennission to ship cargo on board the soid vessel.

On 1 August, the appellant presented to the Customs authority under section 50 of the customs Act, 1962, shipping bills in triplicate and the Customs authority made several endorsements on the shipping bill on the sami~ day. On the 2 August 1966, further endorsements on the shipping bill was made by the Customs authofity indicating that the shipment was inspected, checked and payment was made in full.

On 2 August 1966, ":l rrotification was isswd by the Ministry of Com, .. merce imposing ; i duty at the rate of Rs. 10 per metric tonne on lumpy iron ore. and on 28 January 1967, the Customs authority issued a notice to the appellant notifying that goods actually shipped by the appellant were subject to '!xport duty and the appellant W":l.S liable to pay Rs. 98044 and the appellant was called upon to show cause as to why the amount should not be recovered from him.

The appellant contended that the shipping bill was presented to the Customs authority and the entry outward to -the ship was given prior to 2 August, 1966 when the notification came into force and so, the notification under S. 4A of the Tariff Act 1934 was not applicable to the consignment in question.

The Customs authorities held that the appellant was !\able to Jl'IY the export duty.

The appellant impeached the order b::fore the Judicial Commissioner who also upheld the order of the Customs authorities.

The only question •.vhich arose for d'!cision before this Court was whether the shipment and export of iron ore by the appellant became liable to the said duty introduced on 2 August 1966. The appellant contended th1t th•" shipping bill was presented on 1 August, 1966 and the order of the Customs authorities for entry outw".lrds to the vessel was also given on 1 August 1966 and so, the export in the present case was not liable to payment of duty imposed on 2 August 1966.

The Customs authoriti-es however contended that the vesel arrived at Marmagoa harbour on 3 August 1966 and the vessel commenced loading on 3 August, 1966, and therefore, under s. 16(i) rif the Customs Act 1962, the shipping

bill which had been presented before the date of entry outwards "shall be deemed to be presented at the earliest on 3 August 1966 when the vessel in question arrived,

Allowing the appeal,

HELD : Jn the present case, the Customs authorities acted withoui jurisdiction in impo1ing duty on the expon by holding that the date of entry outwmds of the vessel was the dale when the vessel, arrived.

Section 38 of the Sea Customs Act 1878 was_the Counter-part of Sec. 16 of the Customs Act, 1962. Section 38 h.ad two provisos.

Under the first proviso to tbat oJd section where shipment was permitted without a. shipping bill, the rate of duty was to be the rate in force at the time when the shipment of goods commenced.

Under the second proviso, the shipping bill must be deemed to have been delivered on the date on which that vesSel arriVed or entry outWardS was given which ever was later.

Under the provisos of S. 38 of the old Act, the Customs authorities had power to apply the rate in force on the date o'f the arrival of the vessel. Under S. 16 of the 19.62 Act, it is not permissible to do so. The statute does not contain such a provision. S. 16 of the 1962 Act speaks of the fictional date only in e_Jatiqn to the order of date of entry outwards of the veSse1.

In the-present case, the order of entry outwards of the vessel v1as made prior to 2 August, 1966. Therefore, the Customs auti)oritJes acted without jurisdiction in imposing the duty in question. 'f.879 G-880 CJ

CIVIL APPELLATE 1URISD!CTJON : Civil Appeal No. 2137 of 1968.

Appeal from the judgment and order dated April 5, 1968 of the Judicial Commi$sioner's Court, Goa, Daman and Diu in Writ Petition No. 9 of 1967.

&Ii Sorabjj, P. C. 1Iharlari, B. D. Bharucha, J. B. Dadachmrji and Ravinder Narain, for the appellant.

1agadish Swarup, Solicitor-General of india, Govind Das and B. D. Sharma, for the respondents.

The Judgment of the Court was delivered by

Raj, J. This is an appeal by certiiicatie from the judgment dated 5 April, 1968 of the Court of the Judicial Commissioner, Goa, Daman and Diu at Panaji.

The appellant challenged the leV)' of export duty of Rs. 98044 on .9804-40 mertic tonnes of iron ore &hiPI?ed on S:S. 'Ardenode'

QI! 3 August, 1966 at the rate of Rs. 10 per metric tonne.

The appellant on 26 July, 1966 filed .shipping bill in triplicate before the Joint Chief Controller of Imports and Exports PanaJi, Goa for the 11urpose of obtaining 'eXport licence in respect of

10,160 metric tonnes of iron ore. On 28 July, 1966 export licence was granted to the appellant. on. 30 July, 1966 M/s.

Hiralal & Co. agents of the vessel S. S. ·rdenode' made an application to the Assistant Collector of .customs, Marmagoa for the grant of entry outwards to the said vessel to load iron ore.

On 30 July, 1966 the Assistant Collector of Customs, Marmagoa made an order granting entry outwards to the said vessel S.S.

Ardenode and also gave permission to ship cargo on board the said vessel.

On 1 August, 1966 the appellant presented to the Customs authorities under section 50 of the Customs Act, 1962, (hereillafter called the Act), shipping buts in triplicate, dated 26 July, 1966.

The appellant ill accordance with the provisions of section 50 of the Act at the foot of the shipping but subscribed to a declaration as to the truth of the contents of the shipping buts.

On 1 August, 1966 the Customs authorities made these entries on the shipping bill 'rotation No. 730 Sd/ 1 August, 1966' 'Let export after (7amination if necessary Sd/ 1 August, 1966' and 'E.F.- No. 3/1/8/1966'. The abbreviation 'E.F.' means Export Fee.

On 2 August, 1966 the Customs authorities made further endorsements on the shipping bill.

These endorsements were 'PI as usual and checked. des'; 'lnspec, ted the lot-2-barges-checked des'; and 'Pd in full'.

On 2 August, 1.966 there was a notification issued by the Ministry of Commerce in exercise of powers conferred by section 4-A of the Indian Tariff Act, 1934 amending , the second schedule to the Tariff Act.

The relevant item in the said schedule introduced by way of amendment is 28 and the name of the article is lumpy iron ore and the rate of duty is Rs. 10 per tonne.

The S.S. Ardenode arrived at Marmagoa at 23.20 hours on 2 August, 1966.

The vessel arrived at Marmagoa Inner Harbour on 3 August, 1966 at 07.50 hours. The vessel commenced loading the cargo on 3 August, 1966.

The Customs.authorities on 28 January. 1967 _iss11ed a notice to the appella!lt. notifying that the goOds actually shipped by \he appellant were subject to export .duty at the rate of Rs, . 10 per metric tonne and the custom duty amounting to Rs.· 98044 which was not Je\'.ied in .respect of tjle consignment was due from the appeUant and \lie appellant was called upon in accordance with section.28, of the Act. as to why the runoWlt should not be;, recovered from the appellant .

The appellant contended before die Gtistoms autfu!irities that the shipping bill was presented to the Customs authcirltic!s-and the -entry outwards to. the sh_!p S.S. Ardenode .was given .prior to 2 August, 1966 .when Ill? duty was payable m respectof. the export of the goods m question.

The appellant, therefore, .conted

A that the notification Wider section 4-A of the Tariff Act 1934 was not applicaNe to the consignment and no duty was payable in respect of the export of the goods having regard to the Qrovisions ot r.ection 16 of the Customs Act. It may also be stated that the

appellant impeached the vires of the notificatiQn.

1 The Customs authorities on 19 April, 1967 held that by virtue of the provisions of section 16 ( 1 ) of the Act the shipping bill shall be doe, med to have been presented at the earliest on 3 August, 1966 when the vessel in question arrived. The export duty was levied with effect from 2 August, 1966. The Customs

authoritic~ therefore held that the appellant was liable to pay the C 11xport duty.

The appellant impeached the order of the Customs authorities under Article 226 of the Constitution in the Court of the Judicial Commissioner, Goa, Daman and Diu, Panaji.

The Judicial Commissioner upheld the order of the Customs authorities.

The entire controversy in the present appeal is whether ship- O ment and export of iron ore by the appellant became liable to the said duty introduced on 2 August, 1966.

The relevant provisions for the purpose of the present appeal are to be found in section 16 which deals with date for determination of ra!e of duty and tariff valuation of export goods and E sections 39, 50 and 51 which deal with loading of export goods on vessel and clearance of goods for exportation.

Section 16 is as follows :-

"16( l). The rate of duty and tariff valuation, if any, applicable to any export goods, shall be the rate F and valuation in force-

(a) in the case of goods entered for export under section 50, on the date on which a shipping bill or a bill of export in respect of such goods is presented under that section;

(b) in the case of any other goods, on the date of payment of duty;

Provided that if the shipping bill has been presented before the_ date of entry outwards of the vessel by which the goods are to be exported, the shipping bill shall be deemed \o have been presented on the date of such entry outwards.

(2) The provisions of this seclivn shall not apply to baggaee and aoods exported by post." 10-Lt061SupCl/27

The appellant contended that the shipping bill was presented A on 1 August, 1966 and the order of the Customs authorities for entry outwards to the vessel was also given on 1 August, 1966, and, therefore, the export in the present case was not liable to payment of duty imp<ised on 2 August, 1966. The Customs authorities on the other hand contended that the vessel arrived at Marmagoa on 3 August, 1966 and the vessel commenced loading B on 3 August, 1966, and, therefore, the shipping bill which had been presented before the date of entry outwards 'shall be deemed to be presented at the earliest on 3 August, 1966 when !li:e vessel in question arrived'.

The shipping bill under the Customs Act means a shipping bill referred to in section. 50 of the Act.

Section 50 is as follows :-'- C

"50 (1). The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form.

( 2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents".

In the present case, it is common case that the shipping bill was E presented to the Customs authorities on 1 August, 1966 and the Customs authorities made several endorsements on the shipping bill. on the same day.

These endorsements permitted export after examjnation, if necessary.

The_ further endorsements on the shipping bill on 2 August, 1966 indicated that the shipment was inspected, checked and payment in full was made.

Section 51 of the Act is as follows :-

"Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of goods for exportation".

In the present case, the Customs authorities made endorsement on the shipping bill on 1 August, 1966 permitting export after examination, if necessary.

The shipping bill described the goods as 'free goods'.

Export licence was also granted on that shipping :u bill.

Sections 50 and 51 of the Act deal with entry of goods for exportation and clearance of goods for expOrtation. The word

'entry' is defined in section 2 ( 16) of the Act in relation to good~ exported in a vessel to mean an entry made in a shipping bill.

Entry outwards of a vessel is dealt with in section 39 of the Act. Section 39 is as follows :-

"The master of a vessel shall not pennit the loading of apy export goods, other than baggage and mail bags, until an order has been given by the proper officer granting entry-Outwards to such vessel".

Proper officer mentioned in section 3 9 of the Act is defined in section 2 ( 34) of the Act in .relation to any functions to be per- C formed under this Act to mean the officer of customs who is assigned those functions by the Board or the Collector of Customs.

Section 39 contemplates an order by the proper officer granting entry outwards to such vessel. In the present case, the agents of the ship made an application 30 July, 1966 for entry outwards of the vessel.

The Assistant 'Collector of Customs, Marmagoa granted permission on 30 July, 1966 to ship cargo on board the D vessel.

Under section 39 of the Act loading of goOds is not permissible until an order is made granting entry outwards to the vessel.

In the present case, the Customs authorities on 30 July, 1966 made an order granting entry outwards to the vessel.

Under section 16 of the Act the date of presentation of a E shipping bill is the relevant date for detennination of rate of duty and tariff valuation applicable to export goods.

Under the proviso to section 16 of the Act however there is a fictional date for determination of such duty.

The fiction is introduced by providing for the date of entry outwards of the vessel to be relevant date in case where the shipping bill has been presented before the date of entry outwards. of the vessel.

The date of entry outwards of F the vessel is the order made under section 39 of the Act.

Section 38 of the Sea Customs Act 1878 was the counter-part of section 16 of. the Customs Act, 1962.

Section 61 of the Sea Customs Act, 1878 was the counter-part of section 39 of the Customs Act, 1962.

Under section 38 of the 1878 Act the rate G of duty was the rate in force when the shipping bill was delivered under section 137 of the 1878 Act.

Section 137 of the 1878 Act provided for clearance of goods for shipment by delivery of shipping bill, payment of duties and the passing of the shipping bill by the Customs authorities.

Section 38 of the 1878 Act had two provisos.

Under the first proviso to that old section where ll the shipment was permitted without a shipping bill, or in anticipation of the delivery of a shipping bill, the rate of duty was to be the rate in force at the time when the shipment of goods commenced.

Under the second proviso to section 38 of the 1878 Act

880 SUPR!iMB COURT REPORTS [1972] 3 s.c.R.

where the shipping bill was m anticipation of the arrival of aay A. vessel or before an order was given for entry outwards of the vessel the shipping bill must be deemed to have been delivered on the date on which that vessel arrived or entry outwards was given whichever was later.

Under the provisions of section 38 of the 1878 Act the Customs authorities had power to apply the rate in force on the date of the arrival of the vessel.

Under section 16 B of the 1962 Act it is not permissible to do so.

The statute does not contain such a provision.

Section 16 of the 1962 Act speaks of the fictional date only in relation to the order of date of entry outwards of the vessel.

In the pre.sent case, the order of entry outwards of the vessel was made prior to 2 August, 1966. Therefore, the Customs authorities in the impugned order acted without C

jurisdiction in imposing duty on the export by holding that the date of entry outwards of the vessel was the date "when the vessel arrived".

For the foregoing reasons the appellant is entitlt<d to an order cancelling the notice dated 28 January, 1967 by which the Customs authorities demanded duty from the appellant.

The order D of the Judicial Commissioner is 5et aside.

There will be a writ setting aside the _notice dated 28 January, 1967 and an order for bearing the respondents from taking any steps or proceedings pursuant to the notice dated 28 January, 1967.

There will also be an order quashing the order of the Assistant Collector of Customs dated 19 April, 1967 which gave effect to the notice and E. held the appellant liable to pay the export duty.

The appeal Is allowed.

In the facts and circumstances of the case each party will pay and bear their own costs. s.c.

Appeal allowed.

GANGADHAR NARSINGDAS AGARWAL

P. S. THRIVIKRAMAN & ANR

March 16, 1972

A. N. GROVER

A. N. RAY

D. G. PALEKAR

M. H. BEG, JJ.

Tariff Act 1934

S. 44

S. 44

section 50

customs Act, 1962

2 August 1966

28 January 1967

2 August, 1966

S. 4A

Tariff Act 1934

s. 16(i)

Customs Act 1962

Section 38

Sea Customs Act 1878

Sec. 16

Customs Act, 1962

Section 38

S. 38

S. 16

S. 16

&Ii Sorabjj

P. C. 1Iharlari

B. D. Bharucha

J. B. Dadachmrji

Ravinder Narain

1agadish Swarup

Govind Das

B. D. Sharma

Raj

28 July, 1966

30 July, 1966

Hiralal & Co.

1 August, 1966

section 50

Customs Act, 1962

section 50

2 August, 1.966

Ministry of Commerce

section 4

Indian Tariff Act, 1934

S.S. Ardenode

Marmagoa

section 4

Tariff Act 1934

Customs Act

section 16

Article 226

section 16

sections 39, 50 and 51

Section 16

section 50

3 August, 1966

Customs Act

Section 50

Section 51

Sections 50 and 51

section 2

section 39

Section 39

section 3

section 2

Section 39

section 39

section 16

section 16

section 39

Section 38

Sea Customs Act 1878

section 16

Customs Act, 1962

Section 61

Sea Customs Act, 1878

section 39

Customs Act, 1962

section 38

section 137

Section 137

Section 38

section 38

section 38

section 16

Section 16


STATE OF JAMMU AND XA.SJJMIR

M. S. F ~ROOQl AND Ol'HERS

March 17, 1972 rs. M. SIKRI, c.r., A. N. GR.ovila, A. N. RAv, n. o. PALBKAR

AND M. H. BEG, J.t.)

Constitution of lrtdia, 1950, Art. 254 as applied to Jammu and Kashmir in 1962....:..Scope of.

Jammu and Kashmir Government Servants' Prevention of Corruption C (Commission) Act, 1962-/f repugnooo to All India Services Act, 1951, and Rules made thereunder-Repugnahcy-Test$ for.

The respondent, a member of the Indian Police Service, wu borne on the Jammu and Kashmir Cadre. The Cottunission 8et up under the Jammu and Kashmir Government Servants'' Prevention of Corruption (Commission) Act 1962, directed investigation into a complaint received by t~ Comminlon again&t the respondent. He cballenaed the jurisdic D tion of the Commission, and the High Court allowed the petition, holdl.QJ tmot th.e members of an All Ina Service, serving in a State, are govern ed by the All India Services Act, 1951 and the Rules made thereUndet, and the Commission Act was not applicable to them.

Dismilaing the ap~ to this Court,

HELD : Asaumina that the Conunisaion Act is, in pith all.d substaooe, a law with respect. to cOrruption of Governm.ent servants, it ia repugnant to the provisions of the All India Se!rvis Act and the All Indn ServiefS

(Discipline and Appeal) Rules, 1955_.....and hence, under Art. 2'4 as it existed when the Commiasion Act came into force (July, 16, 1962)j the Commission Act must give way to the All India ServJoea Act and tm

Rules made therunder. [883 C-D. 887 B-C; 897 FJ

(a) The position when the Commission Act came into force was that F Parliant could legislate on it~:m 70, List I, cteruin~ with 'UniCill Public Servicee, All India Services and Union Public Serv1ce Commission, .and Art. 254, as appliqable to Jammu. and Ka&hmir at that time provided that, if any provision of a law made by the Legislature of a StAte is . repugnant to any provision of a law made by Parliament which Parliament iJ compmnt to enact the law made by Parliament, whether d before or after the Jaw made by the Legislature of tbcl State, &hall prevail G . and the law made by the Legislature Of the Sta~ aha.ll, to the extent of repugnancy, be void. It therefore follows that if provision of the Commission Act is repugnant to a provision of the Discipline '3IId Appeal Rules, I9SS, then tl!e law made by the State of Jammu and Kashmir must give way. , L884 HS85 F]

A. S, KrirhM v. State of MGJras,· [1957) S.C. a. ~99; , Deep Charld.

v. State of Uttar Pradesh, [19591 Supp. 2 S.C.R. 8 and Prem Nath H Kaul v. The State of Jammu and Kashmir, [1959] Supp. 2 S.C.R. 270, explained.

(b) Repugnancy arises when (i) there is inoonsi$tency in the a~~ terms of the Act enacted by Parliament and the impugned State ..Act,

SUPREME COURT REPORTS

[1972] 3 S.C.R.

or (ii) the law enacted by Parli-ament was intended to be a complete and A. exhaustive code, (or) (ih) the law enacted by Parliament was innded expressly or impliedly to cover the whole field. L887 FPH] ,

Ch. Tika Ram ji v. Stat.e of U.P., [1956] S.C. R. 393, f<>llowed.

Deep Chand v. State of Uttar Pradesh, [1959) Supp. 2 S.C.R. 8; ref.erred to.

(c) It could be said '3. law enacted by Parliament was intended to -cover the whole field, where by reason of the subject ma.tter dealt with, and the thod of dealing with it, and the nature and multiplicity of the regulations prescribed, Parliament had adopted a plan or scheme which would be hindered and obstructed if '3.0y additional regulations whatever are prescribed upon the subject by any other authority, that is, if the subject is either touched or trenched upon by the State authority. [888 D-Fl

O'Sullivan v. Noarlunga Meat Ltd .. , [1957] A. C. 1: Attornczy General, Canada v. Attorney-General, British Columbia, i1930] A.C. 1:t 1; Subrahmanyan Chattiar v. Muthuswami Goundan, t1940] F.C.R. 188 and Ukha Kolha v. State of Madras, A.I.R. 1963 S.C. 1531, referred to.

Megh Raj v: Allah Rakhia, [1947} F.C.R. 77; Prafulla Kumar Mukherjee v. Bank of Commerce; [1947] F.C.R. 28 and CalcuUa Gas Company v. Ste of West Bengal, [1962] Supp. 3 S.C. R. 1 ; explained

Wynes, Legislative Executive and Judicial Power~ in Austral1'a~ 4th ed. p. 101, referred to.

(d) From the perusal of the provisions of the two statutory laws, namely, the All India Services (Discipline and Appeal) Rules, 1955, and the Jammu and Kashmir Government Servants Prevention of Cctruption (Commission) Act, 1962 it is impossible to escape the conclusion that the two cannot go together.

The impugned Act pro. vides for addition-al punishments not provided for in the Discipline and Appeal Rules; and in so far as the Commission Act deals with the infliction of disciplinary punishment it is repugnant to the Disdpline and Appeal Rules.

Parliament had occupied the field and given clear indication that the only manner in which any disciplinary action could re taken against the members of the All India Service, was und-er the AU India Services (Discipline and Appeal) Rules. [897 B-D]

In so far as the Commission Act deals, with a preliminary enquiry for the purposes of enabling any prosecution to be launched it may be within the legislative competence of the Jammu and Kashmir State and not repugn'ant to the provisions of the Discipline and Appeal Rules. But '8S the provisions dealing with investigation for possible criminal prosecution are inextricably interwined with the provisions dealing with infliction of disciplinary punishment the whole Act mut be read so as to leave the mPmbers qf the All Jndia Services outside its purview. f1897 D-F]

CML APPELLATE JURISDICTION: C.A No. 1572 of 1968.

Appeal from the judgment and order dated the 31st October, 1966 of the Jammu and Kashmir High Court m Writ P€tition No. 130 of 1966.

M. K. Ramamurthi, Ram Panjwani and R. N. Sachthey, for the H appellant.

G. L. Sanghi, for the respondents.

J. & K. STATE v. M. s. FAROOQI (Sikri, C.}.) .883

The Judgment of the Court was delivered by

Sikri, C.J. This is an appeal by certificate granted by the High Court of Jammu and ashmir from its judgment dated October 31, 1966 allowing the writ petition filed by the petitioner.respondent, M. S. Farooqi of the In4ian Police Service, and restraining the State of I ammu and Kashmit, appellant before us, from proceeding against him under the Jammu and Kashmir Government Servant<~'

Prevention of Corruption (Commission) Act, 1962-hereinafter referred to as the Collliliission Act. The High Court held that the members of an All India Serviee serving in a State are governed by the All India Services Act, 1951, and the Rules made thereunder, and the Commission Act was not applicable to them. The High Court further held that the Commission Act was hit by art. 14 of the Constitution as "there is a c~.:.ar discrimina:tion between the members of All India Services posted else where and the members of the same Servic~ postled in the State inasmuch as inquiry against the former for .acts of corruption is to be hel4 under the Central Act and the rules made thereunder while against the latter o for the same acts of corruption enquiry is to be held under the Commission Aot, the px:_ovisions of which are for more drastic than the Central Act and tl_le rules made thereunder."

We may briefly state the releyant facts which necessitated the filing of the writ petition. The respondent before us, M. S. Farooqi, hereinafter referred to as the petitioner, is a member of the Indian E Police Service which is in All India Service. He is borne on the Jammu & Kashmir cadre. On March 12, 1964, an anonymous complaint was received by the Commission, set up undet:. the Commission Act.

On March 20, 1964, the Commi§sion asked for a report from the Deputy Inspector General of Police. The Deputy

Inspector General of Police (Anti Corruption Organisation) raised the question of the juriSqiction of the Commission. The Commis4 sion, however, held that the Commission Act was applicable in its entirety to Government servants belonging to Jammu and Kashmir cadre of the All India ervices. The objection raised by the In4 vestigating Agency was thus overruled. The Investigating Agency was directed to continue Investigation of the. case and submit a report. Thereupon the Qetitioner filed the writ petition in the High Court challenging the .jurisdiction of the Commission. As stated above, the High Court allowed the petition, but later granted certificate of fitness and the appeal filed on behalf of the State of Jammu and Kashmir is now before us.

The learned counsel for the State contends that :

(l) The Commission Ad is in pith and substance a law in respect of corruption of Government servants of 'Jammu ; and Kashmir and only incidentally deals with memberi; of the All India

SUPREME COUJ.T RBPOilTS

(1972) 3 S.C.R.

Services, and is therefore valid in its entirety.

(2) If such a legislation ia valid, t:be Act ilnot discriminatory because aBservants of Jammu and Kamii Government are treat ed alik"!! aDd the same procedure applied to them for the trial of oftences corruptionj

(3) There is valid' classification on 1lbe basis of territory; and

( 4) In any event, the procedure under the Commission Act is not more prejudicial than that under the All India Services Act, 1951, and the rules made thereunder.

The first pointraised by the learned counsel does not meet the. real objection to the applicability of the Commission Act to mem- C bers of the Indian Police Service serving in Jammu and Kashmir.

This objection is that,. assuming that the Commission Act is in pith and substance a law with respect to corruption of Qovernment servants, it is repugnant to the provisions of the All India Service Act, 1951, and the All India Services (lmcipline and Appeal) Rules, 1955-horeinafter referred to as the Discipline and Appeal D Rule., and it must give way to the statUtory provisions.

It seems to us that there is force in the objection raised on be half of the. petitioner an"). in that view it is not necessary to decide the four points raised by the learned counsel.

We are here coricef!lled with. the Constitution Of India as applicable to the State of Jammu and Kaibm.ir at the relevant time. Arti- _cle 3 70 of the Constitution of India, inter alia, provides that "the

powers of-Parliament to make laws for the State (of Jammu and Kashmir) shall be limited to those matters in the Union J., ist and the Concurrent List whih, in consultation with the Government of

the State~ are declared by the President to correspond to matters specified in the Instrument of Acce8sion. governing the Accession r of the State to the Dominion of India as the matters with respect to which the Dominion. Legillature may make laws for the State, and (ii) such other matters in the said Lists as, with the concurrence

of the Government of the State, the President may~ by order epecify." .

G In exercise of the powers onferred by cl. (l) of art. 370, the President, with the concrrence ot the Government of the State of Jammu and Kashmir, made . the Cqnstitution (Applicatton to Jammu andJ Kashmir) Order; 1954.

We are concerned in this case with the position as it existed onJuly 16, 1962 when e Com missiqn Act received he assent of the Sadari-Riyasat. nte posi 1:1 1ion was that Pailiametlt coald legislate on List I, entry 70, which reads: .. Union Public Services, AU•Ind.ia Servicesj UniOn. Public Sttvice commission... .

J. & K. STATE v. M. s. FAl\OOQI (Sikri, C.J.) 88.5.

Articl~ 246 of the Constitution, as applied to Jammu and Kashmir, then read:

"246 ( 1) Parliament has exclusive power to .~ . laws with respect t9 any of the matters enumera~ in

List I in the Seventh Schedule (in this Constitution re-- ferred to as the "Union List"."

Articles 248 and .249 of the Consditution had not been mado applicable to the Stat~ of Jammu and Kashmir and, therefore. all the residuary powers resed with the State of Jammu and Kashmir.

Entry 97 of List I, dealing with residuary powers~ had abo been omitted.

. Article 254, as applicae to the State of Jammu and Kashmir at the relevant time, provided :

"254. If any provision of a law made by the Legi~ lature of a State is rpugnant to any provision of a law made by Parliament which Parliament is competent to enact, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail and t.he law made by the Legislature of the State shal11 to the extent of repugnancy, be void.''

At the relevant time there was no concurrent list. Certain entries in the Concummt 'List eem to have been applied by the order J No. CO 66 of 1963 dated September 25,-1963, for the first time.

. Fr9m this constitu.tiQnal scheme it follo\vs tha• if a. provision 6f the Conuuission Act repugnant to a provision of the Discipline and Appeal Rules, 19S5, then the law made by the State of Jammu and Kashmir must give way. r Article 254 o( the Consrtitution as applied abOw, is similar to section 109 of e Al:!tralian Constitution which provides that "when a Jaw of the State is inconsist&nt with a law ol the Coni monwealth, the latter Shall prevail, and the fonner shall to the extent of inconsistency, be invalid."

G The ]earned counsel for the State relied on various deei&ions of

thi~ Co.urt interpreting art. 2S4, as it existsin the Indian Consti

tuhon. · ·

In A . s. Krishna v. State of M atltas.( 1) while nteq?rettfig s. 107 of the Govent of' India Act, 1935,, which is similar tO art. 254(1) of the Constitution, Venkatarama Ayyar, J, o~~ :

"For tbia section to apply, :two eonditians ttlott be f\IUilled: (1) the provisions of the Provincial law d

(1) [l9S7J S.(:.R. 399.

SUPREME COURT REPORTS.

(1972] 3 S.C.R..

those of the_ Centr~ Legislation must bOth be in respect of a matter which is enumerated in the Concurrent List.

and (2) they must be repugnant to each other. It is only when both these requirements are satisfied that t:he provincial law will, to the extent of repugnancy, become void."

In Deep Chand v. State of Uttar Pradesh(!), SubbaRao, J., as he then was, seems td read cl. (2) of art. 254 in a similar manner.

In Prem Nath Kaul v. The State of Jammu and Kashmir( 2 ), Gajendragadkar, J., as he then was, observed:

"Besides, it is clear that the esnrtial condition for the application of Art. 254( 1) is that the existing law must be with respect to one of the matters enumeJrated in the Concurrent List; in other words, unless it is shown that the repugnancy is between the provisions of a sub~ sequent law and those of an existing law in respect of the specified matters, the Article would be inapplicable;

and, as we have already pointed out, Schedule Seven which cont; ains the three Legislative Lists was not then extended to the fa;.te; and. it is, therefore, impossible to predicate that the matter covered by the prior law is one .of the matllers enumerated in the Concurrent List. That is why Art. 2S4 cannot be invoked by the appelf.ant."

Art. 254, as applicable to the State of Jammu and Kashmir, at the time this judgment was delivered, was in the same form as in the Indian Constitution. This Court was not then dealing with. art. 254 in the form wit~ which we have to deal with.

We may mention that this Court left open the questjon regarding the interpretation of art. 254(1) in the following words in Ch. Tika Ramji v. The State of Uttar Pradesh(8 ) :

"We are concerned here with the repugnancy, if any, arising by reason of both Parliament and t!be State Legislature having operated in the same field inrespect of a matter enumerated in the Concurrent List, i.e., food~ stuffs comprised in Entry 33 of List III and we are, therefore, not ca1Le4 upon to express any opinion on the controversy which was raised in regard to the exact . scope and extent of article 254(1) in regard to "a law made by Parliament which Parliament is competent to enact", as to whether the lgislative power of Parlia~ ment therein refers to List I, List lli and the residuary power of legislation vested in Parliament . under article

1 [t<m] SJp>. 2 S.C.R. 8~1.

(2) [1959} Supp. 2 S.C.R. 270; 300.

(3) {1956) S.C.R. 393; 424.

.A.

J. & K. STATE v . . Jd; .s, FAR.OOQI (Sikri, C.J.) ' 881'

248 or is confined merely to. the matters enumerated.inth$

Cpncurrent List (V.ide A.I.R. 1942 Cal. 587 contra,. pet Sulantiut, J., in 1940 F.C.R. 188 at p. 226)."

It seems to us that the above cases are not applicable as the language of Art. 254 as appliable J. & K. is different .

On the wording of art. 254, as it existed when the Cssion Act was enacted, it seems to us that there is no escape from the clear wording of the article. It says in plain words tb.at if there is any repugnancy between the law made by the State and the law made by Parliamnt the law made by the Legislature of .the State must give way.

So, the only question to be determined is whether there is any repugnancy between the Discipline and Appeal Rules and the Commission Act.

We may state that we are not concerned with the meaning ascribed to art. 254, as it exists in the Indian Constiw tution and which was interpreted by the judgments referred to above.

 In Ch. Tika Ramji v. The State of Uttar Prade5h( 1) this., Court examined the question of. repugnancy. It referred to various authorities and concluded that either there mus~ be inconsistency in the actual terms of the Act. enacted by Parliament and the impugned State Act or 1he law enacted by Parliament be intended to be a complete and exhustive code; in other words, expressly or impliedly evince an intention to cover the whole field. Various tests have been suggested by various authorities as to how to dmmine whether there is any inconsistelicy or repugnancy. Bhagwati, J.,

referred to Nicholas-Australian Constitution, 2nd ed. p. 303who bad suggested three tests of inconsistency or repugnancy, namely:- ·

(1) There must be inconsistency in the actual terms of the c6nlpeting statutes. ·

(2) Though thre may be no direct conflict, a Statt: G law may be inoperative because the Cooimblf..: •

wealth law~ or the award ofth6 CoininonWealth Court, is intended to be a complete exhauStive code.·

(3) Even in *e absence pf intenon, a conftict:tnay ·

arise when both State and Conurionwealth-seek to exercise their powers over the same sject matter.

(1) (1956] S.C.R.. 393.

. SUPReME COURT REPORTS

[1972] 3 S.C.R .

In Deep Chand v. State of Uttar Pradesh(!) Subba Rao, 1., as he then was, speaking for the Court, observed on the question of re-- pugnancy:

"Repugnancy 'between two statutes may thus be as

certain"~ on the basis of the following .three principles :

( 1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to iay down .an exhaustive code in respect of the subject matter

replacing the Act of the State Legislature; and ( 3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field."

We may also refer to the observations of Evatt, J., in Stock Motor Plough Ltd. v. Forsyth(2 ), which were extracted in Tika Ramji's

case( 8) :

"It (the test of covering the field) is no more than a cliche for expressing the fact that, by reason of the sub ject matter dealt with, and the method of dealing with it, and the nature and multi.plicity of the regulations prescribed, the ederal authority has adopted a plan or

scheme which will be hindered and obstructed if any additional regulations whatever are prescribed upon thesuiect by any other authority; if, in other words, the subject is either touched or trenched upon by Stale

authority."

It has been held in Australia that s. 109 of the Australian Constitution is not limited in its application to cases where both B sets of provisions deal with the same subject matter.

Wynes in his "Legislative, Executive and Judicial Powers in Australia" 4th ed. states the general principles as applicable to Australia at page

101, . Some of these p_rinciples may be set out :

"1. Itis essential to consider first whether the questiM of incOnsistency arises. Th:us;· if the Commonwealth have no power to pass th6 law under considera- G tion or the law is otherwise invalid, the matter is ended and sec:. 109 doesnot arise. Similarly, sec.l 09 does not

arise where the State law is invalid on other grounds.

• • 1 t t ..

I I t t o t t t

3. It matters not which Act is first in point of time ..

~ ·~ • ... , ....... .

(1) ~19~91 Supp. 1S:d.k.·~1. .

(2) : [1932)48 C.L.R. 128,)47:.>

(1) ·(I9S6J s.c.a. m.

J. & K. STATE v. ~. $. FA.ROOQI (Sikri, C.J.)

.88&

. 7. Where the is t a direct conHict or <liscrimina.- uoo, there tnay still be UJ.c006iy if the SWe Utell1pts to govern conduct or to de.aJ. with a mattu which hM ~!ready been dealt with by a law of the Commonwealth mtcnde<l to expres CO!llpUlt!!lY elhau.tively or exc111Siv~ ly th~ law goven:ug a certaL~ subject matter. TI; c question m every ca6e 1s : What " the intion of the a:nn~ monwealth Parliam.ent ? Is it an intention to lay dGWn the .wble f the .J.e.w on a ccctain subject'! II so, that subJect IS Withdrawn from State control, but, as we have see fo~ t.he reasoning of Dixon 1., in the 44-hour CO:t", 1t JS wtthdrawn, not from any or all State legislation wh1ch may affect or h.wc some connection with it, but only from Store legislation which attempt5 to govern it in the character in virtue of which it is regulated by Commonwealth law.

8. It is not essential to ihe operation of sec. I 09 that the two Acts comidered as a whole should be upon or "wilh respect to" the Jame &ubject matter, but where the inconsistency sou.Rht to be established is between Commonwealth intention to deal exclusively with a certain 5ubject and Scate law dealil\l: with conduct which may conceivnbly fonn a portion of that 5ubject, the question is whether tho State Act deal• with such conduct as for ming an dcrru:nt in the subject intended to be e.telusi\'l:ly governed by Commonwenllh law. This question is ooe which must be decided in the circumstances of each Pllrticulor case."

The Judicial Committee of the Privy Council_. in sullivan v. r Noarrlunga MaJ Ltd. (I) approved of the follov.ang lines from the

judgment of Dixon 1. in Ex part~ Mc/(an(') :

"The inconsistency does not lie! .in the mere~ tence of two l11ws wflich nre 5Uscept!ble. of simultaneous obedience. It depends upon th7 mtent1on of the p:tra mount legu!arure tu exss by fls eructment, CO!IJple~ ly, ellhoustlvely, or cxclwively, what shall be.J; f h'i~

ovn-n.Iog the partlcnlar conduct or rpatter to _.,_ c 1 .

I d' ._..

Wtren a Pda'sl st3tute "c os r.ttenltOf! ' 'rec'"'-' . m It (I}( the law of till~ an ml'e!tltlcn, it lnoonmtent W1 ft .. a Stt!te to tovcn the ra~ condaet or ma er,

. tromt.r ti and l11 Cued.l 1lli• Q'11eJti~ .+tas lll'ISCS Ul a l\OOillcy i6 .sa.14 to .H those c~ are revt bccnse .. ln Can.nd3 .Pa: IIIIIC of tAo four . be tied up with dte &rng Qoc&r!AO .w ..... 4'! ._

(I) (19HJ A.C. I; 28. ()) -4) c....... .• •

\ [1972] 3 S.C.lt.

propositions. laid down in the Fish Canneries case-Attorney General, Canada v. Attorney-General, British Columbia(!) and the fourth proposition was in these words :

"There can be a domain in which provincial. and Dominion legislation may overlap in which case neither legislation will be ultra vires if the field is clear, but if the field is not clear and the two legislations meet the Dominion legislation must prevail." {see G.T.R. v. A.G.

Can.( 2)]•·

Sulaiman, J., examined this question in Subrahamanyan C Chettiar v. Muthuswami Goundan( 3 ). He observed:

"lt seems to me that the principles of interpretation laid down by their Lordships. in the Canadian cases cannot be brushed aside by simQly saying tpat they relate to .a different Constitution. Those principles are not only , of the greatest weight but must be a guide to us even in interpreting the ndian Constitution. Of course, we cannot interpret the. language of any section in the Indian Act in the light of the interpretation of the corresponding section in the Canadian Constitution. That has to be ayoidedi but the principles of interpretation that have been established cannot be ignored. At the same time it would be dangerous to impon only a part of the doctrine and exclude another part. Partial application may frustrate the very object for which the rule of law was deduced.

The two doctrines of incidental encroachment and unoccupied field are closely related. I would go further and say that they are indissolubly connected.

We cannot import the doctrine of incidental encroachment in favour of the Provinces, and refuse to import the doctrine of unoccupied field which is in favour of the Centre. The two must go hand in hand. To allow Provincial legislatures to encroach upon the exclusiv~ Federal field, even though in an indirect way, when there . is a Central legislation already occupying -the fJ.eld,

would be to give the former a free hand in nullifying Central Acts relating to matters in the Federal List Such a carte blanche could hardly have been contemplated. The scheme of s. 100 of the Act is to exclude completely from the authority of the ProVincial Legis- . l.ature the power to legislate with respect' to subjects in

(1) (19~ A.C~ lll.

(2) (1907] A.C. 6S~ •Sei LUkin canadian Constitutional Law 3rd ed, p, lOS.

(3) {l940) ~.C.R. 1881 231, 240, 241.

. • ; t

, . •

J, &: K. STATE ll. M. S. FAROOQl (Sikri, C.J.) 891

List I. .If in consequence of certain difficulties that Provincial Legislatures would experience by a rigid enforcement of such an exclusion we must in interpreting

the words "with respect to" import the Canadian doctrine of permissibility of incidental encroachment, we must then at the sa:me time import the other allied doctrine also that such an encroachment is permissible only when

the field is actually unoccupied. It is only in this way that actual clash between the Centre and the Provinces can be avoided, which I think we must. This will also explain the apparent gap in s. 107 ( 1) of the Act, that gap being filled in by the provisions of s. 1 00''.

Varadachariar J., left open the point whether the provisions of the impugned Act may also be VQ.id under s. 107 of the Constitution Act insofar as they are repugnant to the provisions of the

Negotiable Instruments ;\ct. He observed :

"The validity of this contention will depend upon the import of the expression "federal law" occurring in the opening part of sub-section (1) of s. 107. It may be conceded that the words "which the Federal Legislature is competent to enact" may refer to the first List also and they need not be qualified by the words occurring later and referring to the Concurrent Legislative List; because, if these later words were intended to qualify the opening words of the sub-section also, it .would not have been necessary to use the words "which the Federal Legislature is competent to enact" in the earlier portion."

He further saw a possible anomaly in the operation of s. 107, viz.,

"that while provincial legislation in respect of subjects in the Concurrent List cannot override "existing Indian law'' except when

assented to by the Governor General, such legislation in respect of subjects enumerated in List II may without any such safeguard override pre-existing enactments even of the Central Legislature if they relate to subjects specified in List 1."

The learned counsel for the State relies on the decision of the G Privy Council in Megh Raj. v. Allah Rakhia(l) in support of his proposition that if the impugned legislation is a law not with respect to All India Servics but a law with respect to Corruption of Public Officers it is within the jurisdiction of the State Legislature, and no question of repugnancy arises. He relies paiticuhirly on. the

H following observations :

"Thus both patties" rightly construed s. 1 07 .as )ul.ving .no appUcation in a case where the province CO\Ikl s~ ·

(1) U947} P.C.R. 77, 8S, 88.

SUPREME COURT JlEPOltTS

that it was acting wholly within its powers under the Provin.ciill List and was not relying on any power conferred on it by the Concurrent List."

"It follows that in their Lordships' judgment there is not sufficient ground for holding that the impugned Act, or any part of it, was invalid. As. a whole it fell within the powers given to tJ:te province by items 2 and 21 of

list U, without any necessity to invoke any powers from the Concurrent List, List III. Accordingly questions of

regnancy under s. 107 of the Constitution At do not

anse and need. not be consideml here;"

But if facts are examined it would be clear that these obs"vations do not assist the appellant.

The Act which was impugned was the Punjab Restitution of Mortgaged Lands Act, 1938, and it was

argued that the provisions of the impugned Act were repugnant to certain existing Indiari Laws, viz., Indian Contract Act and the Code of Civil Procedure, which fell within en&ies 8 and 10 of List

m tho Government of India- Act, 1935.

Entry 8 dealt with "transfer of property other than agricultural land; registration of deeds and documents" and entry 1 0 deJlt with "COjlltracts, including partnership, agency, contracts of carriage, and other special forms of contract, but not including contracts relating to agricultural land." The Privy Council came to the conclusion that the impugned Act was within items 2 and 21 of List n. Their Lordlilhips observed : K

"If, as their Lordships think, the impugned Act is limited to agricultural lad, items 7, 8 and f 0 of List Ill do not affect the position, since agncultural land is ex4 cl'uded in these entries. But in any event, the Act does

:not deal with wills or the transfer of property at an; it does certainly deal with mortgages, but as their Lordships lrave already stated, mortgages, though not expressly mantioned in the Constitution Aot, are properly to bo classed not under the head of contrac~. but as special transactions ancillary to the entry of "land."."

, _

Ill this cue it was obvious that there was no conflict between legis- G lation entries in List ll and JePlation on entries in List m; the conftic:t if at all was with the existing ll!dian laws. The Privy CoucU had not lO deal -M.th the matter with Which 'We are con~ cened, viz., wbaa a Yalid .Sr. legislation eomes iDto caatUct with

a competemt legislation of Parliament under List 1 · hhrly, in P~ KlnMr Mw/cMrfN -.. kNk of Com- • JMrce(t) tMI'e was alltlei ~'1 MtwteR t1Je Blllpl Money

(l) [1941] P.C.R. 28, 34.

J, & K. STATE v. M. s. FAROOQI (Sikri, CJ,) 8~3

Lenders Act, 1940, and an existing Indian Law, namely, Negotiaable I!nstruments Act. It was u,:ged before the Privy Council that "if outside the authorized field the impugned Act con1licts with a Federal law-in the sense in which the words are 'used in s. 107 of the Constitution Actt may be that its provisions would be ineffective.

The answer to the suggestion that there is any such conflict here is threefold : (i) There is no conflict or inconsistency between the impugned Act and the !egotiable Itruments Act;

(ii) If there is a conflict, then the Negotiae Instruments Act is not a Federal law within the meaning of s. 107 of the Cqnstitution Act;

(iii) If there is a conflict, and if the Negotiable Instruments Act is a Federal law then the conflict is with that part of the Fed.eraj Law which is in the field Of contract, which is within the power conferred by List m, the Cqncurrent List, and the conflict is cured by the provisions of s. 107, sub-s. 2, of the Constitution Act, because this is a case where the Act was reserved for the consideration of the Governor-General, and therefore the Provincial law in the province would prevail."

The Privy Council posed three questions. ( 1) Does the Act in question deal in pith and substance with money lending? (2) It

it does, is it valid though it incidentally trenches on matters reserved for the Federal legislature ? ( 3) Once it is determined whether the pith and substance is money lending, is the extent to which the Federal field is invaded a material matter ? They ootswered the first question in the affirmative.

Dealing with the second question, the Privy Council o'bserYed :

''Moreover, the British Parliament when enacting the Indian CQnstitution Act had . a long experience of the working of the British North America Act and the Aus~ tralian Commonwealth Act and must have known that it is npt in principle possible to ensure that the powers entrusted to the several legislatures will never overlap."

The Privy Cooocil approved of certain obserVations of Sir Maurice

Gwyr, C.J. and then observed:

"But the overlapping of subjecttnatter is not avoided by substituting three lists for two, or even Jtr arranging for a hierarchy of jurisdictions. Subjects must still overlap, and where they do, the question must be. asked what

in pith and substance is the effect of the enactnient of which complaint is made, and in what list is its true nature and characttr to be found.

If these questions. could not be asked;· much benefiCient legislation would. be stifled at birth, and many oi the subjects entruSd to il-L1061SupCI/72

. ,

Provincial legislation could never effectively be dealt .4 with."

Dealing with the third question, the Privy Council observed :

"No doubt it is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion. butJor the purpose of determining what is the pith and substance of the impugned Act.

Its provisions may advance so far into Feral territory as to show. that its true nature is not concerned with provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to sho'Y that the pith and substance of the impugned Act is not money lending but promissory notes or banking ?"

Their Lordships further observed :

"Does the priority of the Federal legislature prevent the Provincial legislature from dealing with any matter which may incidentally affect any item in its list, or in each case has one to consider what the substance of an Act is and, whatever its ancillary effect, attribute it to the appropriate list according to its true character ?"

in this case there was no conflict alleged with the Federal legislation on an item in List I and what they were considering was conflict with the existing law. ·

In A. S. Krishna v. State'oj Madras( 1) the conflict alleged was between the Madras Prohibition Act, 193 7, on the one hand atld the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1898 on the other. This Court held that the impugned Act in question was a law with respect to. entry 31 List II, and observed :

'The Madras Prohibition Act is thus in its entirety a law within the exclusive competence of the Provincial Legislature, and 'the question of repugnance under s. 107 (1 ) does not arise."

The Court did not address itself to the question whether assuming that it was a law with respect to entry 31 List IT a, nd not a law with respect to entries 5 and 2 respectively. of List m, yet what is to happen if the existing laws, namely, the Evidence Act and the Criminal Procedure Code, were in fact repugnant. At any rate, this Court was then not concerned with Parliamentary legislation under List I and also was not concerned with art. 254 in the form as it existed at the relevant tim~ as awlic•bl~ . to the State of Jammu and Kashmir.

(1) [19S7] S.C.R. 399.

' '

. B

J. & K. STATE v. M. s. FAROOQI (Sikri, C.J.) sgs

We may mention that this Court upheld the provisions of the Bombay Prohibition Act, 1949, under art. 254(2) in Ukka Kolhe

v. State of Madras (1) insofar as they were consistent with the provisions of the Code of Criminal Procedure.

The learned counsel for the appellant referred to Calcutta Gas Company v. State of West Bengal(2), but we are unable to see how it helps the appellant's case.

In that case the Court was concerned with reconciling certain entries and observed that "entries in the lists are only legislative heads or fields of lslation; they demarcate the area over whichthe appropriate legislature cal' operate. It is well settled that wide:; t amplitude should be given to the language of the entries.

But some of the entries in the different List or in the same List may overlap and sometimes may also appear to be in direct conflict with each other.

It is then the duty of this Court to reconcile the entries and bring harmony between them." But in this case we are not concerned with any question of harmonising the entries because we have on the one hand a specific entry in List I and on the other hand a residuary List.

Now it remains to be seen whether the impugned Act is repugnant to the provisions of the All India Service (Discipline and Appeal) Rules, 1955.

We may first notice the provisions of the Discipline and Appeal Rules.

Rule 3 prescribes certain penalties, which may for good and sufficient reasons. and as hereinafter pro. vided be imposed on a member of the Service.

The penalties include censure, withholding of increments or promotion; reduction in rank, removal from service and dismissal from service, etc. The authority to institute proceedings and to impose penalties is mentioned in r. 4.

It is the Government, under whom the member is serving At the time of the commission of an act or omission which renders him liable to any penalty, which is competent alone to institute disciplinary proceedings and that Government can also impose all the penalties specified in r. 3 except the penalty of dismissal, removal or compulsory retirement which order can only be passed by an order of the Central Government.

Rule 5 prescribes the procedure for imposing penalties.

The gro"Jnds on which it is proposed to take action shall be reduced to the fonn of definite

charge or charges which shall be communicated to the member of the Service charged together with a statement of the allegations on which each charge is based and of any other circumstances which it,'is proposed to take into consideration in passing orders on the B . case. A member of the service is given reasonable time to 'put in a written statement of defence. It enables him to be, heard if he

(1) A.l.R. £1963} S.C. 1531. {2)' £1962f Supp. 3 S.C.R. 1.

896 SUP.Rl!MB COUllT REPORTS [1972]'3 S.C.ll.

so desires. The member of the Service is entitled to have acce8s A to official records.

After the written statement is received, if such is filed, the Government may appOint a Board of Inquiry or an Inquiry Officer to enquire into the . charges or the Government enquires into the charges itself.

' In brief, detailed rules are laid down regarding the manner of B holding the enquiry. Rule 6 provides for consultation with the Union Public Service Commission.

Rule 7 deals. with suspension during disciplinary proceedings and r. 8 deals with subsistence allowance during suspension. Rule 9 deals with payment of pay and allowances and treatment of service on reinstatemnt. A right of appeal is given against certain orders and r. 20 provides for a C . memorial to be submitted to the President.

These rules are a complete code as far as infliction of penalties prescribed in r. 3 is concerned.

The Commission Act provides for the constitution of one or D . more Commissions to be known as the Anti-Corruption Commis~

sions to hold enquiry into the charges of corruption -and misconduct, as defined in s. 3 and 4 of the Coqunission Act, against all government servants including members of All India Services. The Commission is provided with an investigating agency to investigate into the charges. Section 10, before its amendinent, provided for E

an inquiry by the Commission either suo motb or on a report in writing by certain officers. Under s. 11 every person is entitled to complain to the Commission against a Government servant. Section 12 provides for' a preliminary examination of the complaint.

The Commission may either dismiss the complaint or, if in its opinion there are sufficient grounds for taking further proceedings in the complaint, the Commission shall cause the sutance of. the I' allegations to be drawn into distinct articles of charges and summon the accused to appear beibre it. Under sub-s. (5) of:s. 12, as it existed before its amendment in 1969, the government servant had to be placed under suspension after the charges were drawn up

against him by the .commission. Section 13 provides for procedure at the enquiry.

Section 17 requires the Commission to record G its findings on the various articles of the charge and submit its recommendation to the Sadar-i-Riyasat. H any of the charges are held to have been established against the accused, the Commission has to recommend the punishment mentioned in this section. Under sub-s. (2) of s. 17 the Commission may, in addition to the punishment referred to in sub-s. ( 1), recommend that the accused be H declared for ever or for any shorter period of time to be specified, incapable or being appointed to any public office. Sub-section ( 3) provides that in a fit case the Commission may recommend that

z.-' E. STATB v. M, S. FAllOOQI (Sikri, C.J;) 897

the accused be prosecuted for any o1fenee in a Cpun of law.

Subsection (7) specifically deals with members of the All India Services

and provides that in their case the Sadar-i-Riyasat may recommend the imposition of the punishment to the appropriate authority.

There are various other incidental provisions which we need not detail.

From the perusal of the provisions of the two statutory laws, namely, the All India Services (Discipline and Appeal) Rules,

1955, and the Jammu and Kashmir Government Servants' (Prevention of Corruption (Commission) Act, 1962, it is impossible to escape from the conclusion that the two cannot go together. The impugned Act provides for additional punishments not provided in the Discipline and Appeal Rules. It also provid~ for suspension 'I!Jld infliction ofsome punishments.

It seems to us that insofar as the Commission Act deals with the inftiction of disciplinary punish• ments it is repugnant to the Discipline and Appeal Rules. Parliament has occupied the field and given clear indication that this was the only manner in which any disciplinary action should be taken against the members of the All India Service.

Insofar as the Commission Act deals with a preliminary enquiry for the purposes of enabling any prosecution to be launched it may be within the legislative competence of the Jammu and ashmir state and not repugnant to the provisions of the Disciplme and Appeal Rules.

But as the provisions dealing with investigation for possible criminal prosecution are inextricably intertwined with" the provisions

dealin~ with infliction of disciplinary punishment the whole Act must be read down so -as to leave the members of the A1l India Service outside its purview. -

We accordingly hold that the provisions of the Commission Act do not apply to the memblers ol e All India Services. Accordinglv we dismiss the appeal. As the respondent was not represented , there would be no order as to costs.

We thank Mr. G. L. Sanghi for assisting us as amicus curiae.

V.P.S.

Appeal dismissed.

M. S. F ~ROOQl AND Ol'HERS

1972 rs. M. SIKRI

M. H. BEG, J

Art. 254

Scope of.

Jammu and Kashmir

All India Services Act, 1951

All India Services Act, 1951

Asaumina that the Conunisaion Act

Art. 2

July, 16, 1962)j

Union Public Serv1ce Commission

Art. 254

Parliament

IId Appeal Rules

State of Jammu and Kashmir

1940] F.C.R. 188

[1947] F.C.R. 28

Wynes

All India Service

Jammu and Kashmir High Court

M. K. Ramamurthi

Ram Panjwani

R. N. Sachthey

G. L. Sanghi

Sikri

M. S. Farooqi

Kashmit

art. 14

M. S. Farooqi

Indian E Police Service

March 12, 1964

March 20, 1964

Jammu and Kashmir

Jammu

All India Service Act, 1951

Constitution of India

art. 370

Seventh Schedule

Articles 248

Article 254

Article 254

section 109

art. 2S

s. 107

India Act, 1935

art. 254(1)

Venkatarama Ayyar

SubbaRao

art. 254

Gajendragadkar

Art. 254( 1)

Art. 2S

Art. 254

State of Jammu and Kashmir

art. 254

art. 254(1)

article 254(1)

article

1

1940 F.C.R. 188

Art. 254

art. 254

art. 254

Parliament and the impugned State Act

Bhagwati

Evatt

Australia

s. 109

Sulaiman

s. 100

K. STATE

M. S. FAROOQl

s. 107

s. 1

Varadachariar

s. 107

s. 107

s. 107

s. 1

s. 107

Indian Contract Act and the Code

Lenders Act, 1940

s. 107

s. 107

Negotiable Instruments Act

s. 107

s. 2

British Parliament

Maurice

Gwyr

Indian Evidence Act, 1872

Code of Criminal Procedure, 1898

s. 107

art. 254

art. 254(2)

Code of Criminal Procedure

Central Government

Union Public Service Commission

s. 3 and 4

All India Services

Section 10

s. 11

Section 12

s. 12

Section 13

Section 17

s. 17