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Firm, Sree Rama Coconut Co., by Its Secretary P.V. Jagannadham Patnaik, Kanchili, Srikakulam District and ors. Vs. the State of Andhra Pradesh, Represented by Its Secretary, Agricultural Department, Hyderabad and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 439 of 1959
Judge
Reported inAIR1961AP138
ActsConstitution of India - Article 254(1); Madras Commercial Crops Markets Act, 1933; Coconut Committee Act, 1944
AppellantFirm, Sree Rama Coconut Co., by Its Secretary P.V. Jagannadham Patnaik, Kanchili, Srikakulam Distric
RespondentThe State of Andhra Pradesh, Represented by Its Secretary, Agricultural Department, Hyderabad and an
Appellant AdvocateD. Sreerama Sastry, Adv.
Respondent Advocate3rd Govt. Pleader, Adv.-General and ;J.V. Suryanarayana Rao, Adv.
DispositionPetition dismissed
Excerpt:
.....- article 254 (1) of constitution of india - writ petition filed contending that madras commercial crops markets act, 1933 is repugnant to provisions of indian coconut committee act, 1944 - no inconsistency in actual terms of two enactments - scrutiny of provisions of act of 1933 reveals that policy and purpose of act of 1933 are not identical with those of act of 1944 - held, both acts can co exist and consistently stand together. - - in the final analysis, there can be no one crystal clear distinctly marked formula. the preamble makes plain the policy underlying the act by reciting that it is expedient to provide for the better regulation of the buying and selling of commercial crops in the presidency of madras and for that purpose to establish markets and make rules for their..........limits of the district of srikakulam as a notified area for the purposes of the madras commercial crops markets act, 1933, in respect of coconuts.2. the petitioner-firms are doing business in the purchase and export of coconuts mostly to traders outside the state of andhra pradesh. thequestion that is mooted in this writ petition is whether the madras commercial crops markets act, 1033, in so far as it is sought to be applied to the petitioners by virtue of the said g. o., is repugnant to the provisions of the indian coconut committee act, 1944. the former will be referred to hereinafter as the madras act and the latter as the central act.if, as contended by the petitioners, the madras act is repugnant to the central act, the latter must prevail and the former would be void to the.....
Judgment:

Besi Reddy, J.

1. This is a petition under Article 226 of the Constitution for the issue of a writ in the nature of mandamus directing the respondents, the Government of Andhra Pradesh and the Srikakulam Market Committee, to forbear from enforcing G. O. Ms. No. 91, Agriculture, D/- 10-1-1958, which declares the area within the limits of the District of Srikakulam as a notified area for the purposes of the Madras Commercial Crops Markets Act, 1933, in respect of coconuts.

2. The petitioner-firms are doing business in the purchase and export of coconuts mostly to traders outside the State of Andhra Pradesh. Thequestion that is mooted in this writ petition is whether the Madras Commercial Crops Markets Act, 1033, in so far as it is sought to be applied to the petitioners by virtue of the said G. O., is repugnant to the provisions of the Indian Coconut Committee Act, 1944. The former will be referred to hereinafter as the Madras Act and the latter as the Central Act.

If, as contended by the petitioners, the Madras Act is repugnant to the Central Act, the latter must prevail and the former would be void to the extent of the repugnancy, as enjoined by Article 254(1) of the Constitution. The Madras Act did not in terms include coconuts within its ambit, but in exercise of the powers conferred on it by Sections 3 and 4 of the Madras Act, the State Government has notified coconut as a 'commercial crop' for the purposes of that Act by the G. O. referred to above.

3. It must be mentioned even at the outset that the Madras Act fell for consideration by the Supreme Court and their Lordships in Arunachala Nadar v. State of Madras, : AIR1959SC300 , held it to be a valid piece of marketing legislation and ruled that it did not impose unreasonable restrictions on the citizens' fundamental right to carry on Business. The question of its repugnancy to any of the provisions of the Central Act was, however, not raised beforetheir Lordships; nor was the point taken before the Madras High Court which dealt with the matter in the first instance.

This Court too had to consider the validity of the Madras Act in Writ Petition 666 of 1958 and although some of the petitioners herein were parties there also and although various contentions were raised, the contention now raised in this Writ Petition was however not advanced then. In that Writ Petition this court overruled all the contentions urged against the constitutional validity of the Madras Act and dismissed the Writ Petition.

4. In the present case the sum and substance of the contention of the petitioners is that the Central Act has occupied the entire field in respect of coconuts and is a complete and exhaustive code with regard thereto and inasmuch as the Madras Act with the aid of the impugned G. O., seeks to enter the same field, it is to that extent repugnant to the Central Act and is void and inoperative.

5. At this stage the meaning and scope of the rule as to repugnancy may be considered. In a catena of cases the Supreme Court of the United States, in considering the validity of State Laws in the light of Federal laws touching the same subject, has made use of the following expressions to convey the same idea: conflicting; contrary to; occupying the field; repugnance; difference; irrecomcilability; inconsistency; violation; curtailment; and interference.

But, as pointed out by Mr. Justice Black in Hines v. Davidowitz, (1940) 312 US 52: 85 Law Ed. 581 none of these expressions provides an infallible constitutional test, or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula.' The function of the Court in each case is to determine whether under the circumstances of that particular case, did State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the Federal law.

6. In Sinnot v. Davenport (1859) 22 How 227: 16 Law Ed. 243 the Supreme Court of the United States adopted the following test: The governing principle is that for an Act of Congress completely to displace the State law,

'the repugnance or conflict should be direct and positive, so that the two Acts could not be reconciled or consistently stand together.'

7. Nicholas in his 'Australian Constitution', 2nd Edn. p. 303, refers to three tests for determining the question of inconsistency :

1. There may be inconsistency in the actual terms of the competing statutes.

2. Though there may be no direct conflict, the State law may be inoperative because the Commonwealth law is intended to be a complete exhaustive code.

3. Even in the absence of intention, a conflict may arise when both States and Common wealth seek to exercise their powers over the same subject-matter.

8. In a case reported in (1926) 37 C. L. R. 466 at p, 489 (Clyde Engineering Co., Ltd. v. Cow-burn, Metters Ltd.), Isaacs, J. laid down what he regarded as a conclusive test of inconsistency ;'If, however, a competent legislature expressly or implicitly evinces its intention to cover the wholefield, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.'

9. The analogous Canadian doctrine of the 'occupied field' was succinctly stated by the Judicial Committee in Forbes v. Attorney General for Manitoba (1937) AC 260 at p. 274:

'The doctrine of the 'occupied field' applies only where there is a clash between Dominion legislation and provincial legislation within an area common to both.'

10. In the case of Deepchand v. State of Uttar Pradesh, : AIR1959SC648 , Subba Rao J., speaking for the Supreme Court, formulated three criteria for ascertaining whether there is repugnancy between two statutes :

1. Is there a direct conflict between the two provisions?

2. Did Parliament intend to lay down an exhaustive code in respect of the subject-matter replacing the Act of the State Legislature? And

3. Do the law made by Parliament and the law made by the State Legislature occupy the same field?

11. As will be seen presently, in the instant case there is no question of any inconsistency in the actual terms of the two enactments; nor is the Central Act intended to be an exhaustive code in respect of coconuts. The only question that arises is whether the two Acts cover the same ground and occupy the same field.

12. It is true that in a broad sense the Central Act and the Madras Act, read with the impugned G. O., deal with the same subject viz., coconuts; but that is hardly a conclusive test for determining the question of repugnancy. Two statutes may deal with the some general subject and yet operate in different fields. As was pointed out by Bhagwati J. in delivering the judgment of the Supreme Court in Tika Ramji v. State of U. P., (S) : [1956]1SCR393 ;

'Repugnancy falls to be considered when the law made by Parliament and the law made by the State Legislature occupy the same field) because, if both these pieces of legislation deal with separate and distinct matters though of a cognate and allied character, repugnancy does not arise.'

13. It is now necessary to compare and contrast the provisions of the two enactments to ascertain whether there is any irreconcilable inconsistency between them. The Madras Act was enacted by the Madras Legislative Council in the year 1933 under the Government of India Act, 1919, and has been kept alive and amended from time to time. The preamble makes plain the policy underlying the Act by reciting that it is expedient to provide for the better regulation of the buying and selling of commercial crops in the Presidency of Madras and for that purpose to establish markets and make rules for their proper administration.

This measure was obviously conceived in the interest of the growers of commercial crops by providing markets where the growers could come into direct contact with the buyers and where the business transacted in the markets could be controlledand canalized. By this device it was intended to protect the growers from being exploited by middlemen and to secure for them the best possible price for their products. The provisions of the Madras Act fall broadly into two groups : the first group provides the machinery for controlling the trade in commercial crops and the second group imposes restrictions on the carrying on of the said trade.

Section 2 (1) (a) defines 'commercial crop' to mean cotton, groundnut, or tobacco and includes, any other crop or product notified by the State Government in the Fort St. George Gazette as a commercial crop for the purposes of the Act. Section 3 authorises the Slate Government to issue a notification declaring their intention to exercise control over the purchase and sale of such commercial crop-or crops in a particular area and to call for objections or suggestions to be made within a prescribed time.

After the receipt of objections and suggestions and after considering them, the State Government issues a notification under Section 4 declaring the area specified in the notification under Section 3 or any portion thereof to be a notified area for the purposes of the Act in respect of the commercial crop or crops, specified in the notification under Section 3. Under Section 4-A. the State Government has to establish a Market Committee for every notified area and it shall be the duty of the Market Committee to enforce the provisions of the Act and the rules and bye-laws made thereunder.

Sub-section 2 of Section 4-A makes it incumbent on the Market Committee to establish in a notified area such number of markets providing for such facilities, as the State Government may from time to time direct, for the purchase and sale of the commercial crop or crops concerned. Sections 6 to 10 provide for the constitution of Market Committees and it is worthy of note that the membership of the Committees is drawn from the representatives of the growers of commercial crops, persons licensed under the Act and buyers and sellers of commercial crops in the notified area.

14. Section 11 makes provision for finance and empowers the Market Committee to levy a fee on any commercial crop bought and sold in the notified area at such rates as the State Government may by notification determine. Section 11-A further enables the Market Committee to levy a subscription for collecting and disseminating among the subscribers information as to any matter relating to crop statistics or makcting in respect of the commercial crop or any of the commercial crops concerned. Section 12 provides that all moneys received by a Market Committee shall be paid into a fund to be called the 'Market Committee Fund' and all expenditure incurred by the Market Committee under and for the purposes of the Act shall be defrayed out of the said fund.

15. The next set of provisions are contained in Section 5 and they impose restrictions on trading in commercial crops in the notified area. Section 5(1) says that no person shall, within a notified area, set up, establish, or use, or continue or allow to be continued, any place for the purchase or sale of the notified commercial crop, except under and in accordance with the conditions of a licence granted to him by the Collector.

The first proviso to that section lays down that after the establishment in such area of a market for the purchase and sale of a notified commercial crop, no licence for the purchase or sale of such commercial crop shall be granted or renewed in respect of any place situated within such distance of the market as may from time to time be fixed by the State Government. The second proviso enables the Market Committee to exempt from the provisions of the above sub-section any person who carries on the business of purchasing or selling any commercial crop in quantities not exceeding those prescribed by the rules made under the Act.

The third proviso authorises the said Committee to exempt a person selling a commercial crop which has been grown by him or a Co-operative Society selling a commercial crop which has been grown by any of its members. Sub-section 2 of Section 5 grants exemption to a person purchasing for his private use the commercial crop in quantities not exceeding those prescribed by the rules framed under the Act. Sub-section 3 prohibits a person within a notified area from setting up, establishing or using, continuing or allowing to be continued, any place for the storage, weighment, pressing or processing of any notified commercial crop except under and in accordance with the conditions of a licence granted to him by the Collector. The proviso to Sub-section 3 excludes the application of the provisions of the sub-section to a person in respect of any notified commercial crop grown by him.

16. Section 13 of the Act enumerates the various purposes for which the Market Committee Fund may be utilized. The more important of those purposes are : the acquisition of a site or sites for the market; the maintenance and improvement of the market; construction and the repair of buildings which are necesssary for the purposes of such market and for the health, convenience and safety of the persons using it; the provision and maintenance of standard weights and measures; the collection and dissemination of information regarding all matters relating to crop statistics and marketing in respect of the commercial crop or crops concerned; schemes for the extension or cultural improvements of the commercial crop or crops concerned within the notified area, including the grant, subject to the approval of the State Government, of financial aid to schemes for such extension or improvement within such area, undertaken by other bodies or individuals, and propaganda in favour of agricultural improvements and thrift.

17. In the ease of : AIR1959SC300 , referred to above, Subba Rao, J, summed up the scheme and intendment of the Madras Act in the following words:

'Shortly stated the Act, Rules and the bye-laws framed thereunder have a long-term target of providing a net-work of markets wherein facilities for correct weighment are ensured, storage accommodation is provided and equal powers of bargaining ensured, so that the growers may bring their commercial crops to the market and sell them at reasonable prices. Till such markets are established, the said provisions, by imposing licensing restrictions,enable the buyers and sellers to meet in licensed premises, ensure correct weighment, make available to them reliable market information and provide for them a simple machinery for settlement of disputes. After the markets are built or opened by the Marketing Committee, within a reasonable radius from the market, as prescribed by the Rules, no licence is issued; thereafter all growers will have to resort to the market for vending their goods. The result of the implementation of the Act would be to eliminate, as far as possible the middlemen and to give reasonable facilities for the growers of commercial crops to secure best prices for their commodities.'

18. It will thus be seen that the dominant purpose of the Madras Act is the establishment and maintenance of markets coupled with the regulation of buying and selling of commercial crops within the precincts of such markets.

19. Now turning to the Central Act, that Act was passed by the Federal Legislature on its being empowered to do so by the Governor-General in the exercise of his residual powers of legislation conferred on him by Section 104 of the Government of India Act, 1935. That section reads thus:

'104 (1) : The Governor-General may by public notification empower either the Federal Legislature or a Provincial Legislature to enact a law with respect to any matter not enumerated in any of the Lists in the Seventh Schedule to this Act, including a law imposing a tax not mentioned in any such list and the executive authority of the Federation or of the Province, as the case may be, shall extend to the administration of any law so made, unless the Governor-General otherwise directs.

(2) In the discharge of his functions under this section, the Governor-General shall act in his discretion.'

20. The very fact that the Governor-General invoked his powers under Section 104 for the purpose o getting the General Act passed by the Federal Legislature shows that die matter with which the Central Act was dealing, was not covered by any of the Legislative Lists in the Seventh Schedule to the Government of India Act. As already noticed, the Madras Act dealt primarily with markets and the regulation of buying, and selling of commercial crops within certain areas by maintaining among other thing, standard weights and measures; and in the Provincial Legislative list viz., List II in the Seventh Schedule to the Government of India Act, 1935, entry 27 related to 'trade and commerce within the Province'; entry 28 to 'market and fairs', while entry 30 related to 'weights and measures'.

Similarly under the Constitution of India in List II i.e., the State List, entry 26 relates to 'trade and commerce within the State'; entry 28 to 'markets and fairs' and entry 29 to 'weights and measures'. It is apparent therefore that the matters dealt with by the Madras Act fell within the Provincial Legislative List under the Government of India Act, 1935, and fall within the State List under the Constitution.

21. Moreover a scrutiny of the provisions of the Central Act reveals that the policy and purpose of the Central Act are not identical with those ofthe Madras Act. The preamble to the Central Act shows that it was an Act intended to provide for the creation of a fund to be expended by a specially constituted Committee for the improvement and development of the cultivation, marketing and utilization of coconuts in India.

Section 3 of the Act provides for the imposition of a cess known as the coconut cess which shall be levied and collected on all copra consumed in any mill in the territories to which the Act extends whether produced in or imported from outside the said territories at such rate not exceeding 4 annas per Cwt. as the Central Government may, after consulting the Indian Coconut Committee, fix.

The duty so collected shall be paid to the Committee and the Committee shall credit the said proceeds and any other moneys received by it to a fund called the Coconut Improvement Fund. Sections 4 to 7 deal with the Constitution of a Committee known as the Indian Central Coconut Committee. Section 9 provides for the application of the fund to the improvement and development of the cultivation and marketing of coconuts and the production, utilization and marketing of copra, coconut oil and coconut 'poonac'. Sub-section 2 of Section 9 enables the Committee to utilize the fund to defray expenditure involved in -

(a) undertakings, assisting or encouraging agricultural, industrial, technological and economic research;

(b) the supply of the technical advice to growers;

(c) encouraging the adoption of improved methods in cultivation;

(d) carrying on such propaganda in the interests of the coconut industry as may be necessary;

(e) collecting statistics from growers, dealers, millers and other sources on all relevant matters bearing on the industry;

(f) fixing grade standards of copra and its products;

(g) recommending the maximum and minimum prices to be fixed for copra;

(h) advising on all matters which require attention for the development of the industry;

(i) improving the marketing of coconuts in India and abroad and suggesting suitable measures to prevent unfair competition;

(j) assisting in the control of insects and' other pests and diseases of coconut trees;

(k) promoting and encouraging co-operative efforts among the coconut growers and in the coconut industries;

(l) adopting such measures as may he practicable for assuring remunerative returns to growers;

(m) maintaining and assisting in the maintenance of such institutes, farms and stations as it may consider necessary;

(n) adopting any other measures or performing any other duties which it may he required by the Central Government to adopt or perform or which the Committee itself may think necessary or advisable in order to carry out the purposes of this Act.

22. Thus the revenues for carrying out the purposes of the two laws are derived from different sources; the Committees which administer the two laws are constituted differently; and the objects of the two laws are not identical. It will further be observed that although there is a provision for improving the marketing of coconuts in India and abroad and suggesting suitable measures to prevent unfair competition as among traders, one searches the clauses of the Central Act in vain for a provision similar to the one contained in the Madras Act viz. the establishment of markets with a View to regulate the buying and selling of commercial crops for the purpose of ensuring the optimum price to the grower by eliminating the middleman.

In truth the Madras Act envisages the simplest form of marketing viz. the sale by the producer directly to the buyer, be he the consumer or trader, and aims at bypassing the middleman whereas the Central Act with its more ambitious policy of finding trade outlets by improving the marketing of coconuts in India and abroad, contemplates modern methods of marketing through wholesalers, retailers, commission agents, brokers and so forth.

23. It is true that some of the subsidiary objectives of the Madras Act overlap the objectives of the Central Act, e.g. the collection of crop statistics and encouragement of the adoption of improved methods of cultivation. Even in these matters it is extremely doubtful if a body like the Indian Central Coconut Committee functioning from its head-quarters at Ernakulam in Kerala State would be of any effective service to the coconut grower in the rural areas of Andhra Pradesh.

Its monthly bulletins and periodical pamphlets published in the English, Malayam and Kannada languages are hardly likely to reach the villager in the Andhra area. In the words of Sulaiman J. in Shyamakant Lal v. Rambhajan Singh, AIR 1939 FC 74 at p. 83, 'Further, repugnancy must exist in fact, and not depend merely on a possibility'. The Judicial Committee stated the same principle thus:

'Their Lordships can discover no adequate grounds for holding that there exists repugnancy between the two laws in districts of the Province of Ontario where the prohibitions of the Canadian Act are not and may never be in force'. Attorney General for Ontario v. Attorney General for Dominion of Canada, (1896) AC 348 at pp. 369-70.

24. Apart from all this, what is decisive of the question at issue is that the essential purpose sought to be achieved by the Madras Act is not covered by the Central Act because the latter does not touch the subject of markets. It does not therefore supersede or displace the Madras Act.

25. It is also worthy of note that although the Indian Central Coconut Committee has been functioning since the year 1945, it has not established markets anywhere in India where the growers and buyers could meet and transact business subject to its control and supervision. Indeed a body functioning under the Central Act would have been wanting and would be wanting in power to set up markets or prescribe weights and measures, for alike under the Government of India Act of 1935 and under the present Constitution those topics were and are within the exclusive legislative domain of the Provinces and the States.

26. It follows that the Central Act and the Madras Act do not cover the same subject-matter, and the two enactments do not occupy the same field; in fact, to pursue the metaphor, the Madras Act operates in an area left vacant by the Central Act. Both the Acts can therefore co-exist and consistently stand together. As observed by Dixon, J. in Ex parte Mclean, (1930) 43 CLR 472 at p. 483:

'The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed.'

27. Here in this case there is no direct conflict between the provisions of the two statutes; nor is the Central Act intended to be a complete exhaustive code in respect of coconuts; nor again do the two laws occupy the same field. There is thus no repugnancy, no conflict and no clash between the Central Act arid the Madras Act read along with the impugned G. O. The result is that the Writ Petition fails and is dismissed with costs. Advocate's fee, Rs. 100/-.


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