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Municipal Council Palai Vs. T.J. Joseph and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1963SC1561; 1963(0)KLT432(SC); [1964]2SCR87
ActsTravancore District Municipalities Act, 1914 - Sections 286 and 287; Travancore-Cochin Motor Vehicles Act, 1125 - Sections 72
AppellantMunicipal Council Palai
RespondentT.J. Joseph and ors.
Cases ReferredShyamakant Lal v. Rambhajan Singh
Books referredSutherland on Statutory Construction Vol. 1, 3rd Edn.; Halsbury's Laws of England, Vol. 6, 3rd Edn.
Excerpt:
.....act, 1125 was enacted, asthe preamble shows, in order to provide 'a uniform law relating to motorvehicles' and we see no reason why sections like 286 and 287 to the extent theymilitate against such uniformity should not be considered as having beenrepealed by implication. 120) which was passed inthe year 1855 was intended to provide for the better sewerage, drainage etc. we are bound as well by the plain words of the act as bythe general scope and object of it, and also by the justice of the case. the quotation from the former is :i repeal the previous actalso in another way, namely, by enacting a provision clearly inconsistent withthe previous act. 460.the substance of what they have quoted is that the doctrine of implied repealis well-recognised, that repeal by implication is a..........act stood repealed byimplication by virtue of the provisions of s. 72 of the travancore-cochin motorvehicles act, 1125 m.e. (corresponding to a.d. 1950) which came into force onjanuary 5, 1950. that section reads as follows : 'government or any authority authorised in thisbehalf by government may, in consultation with the local authority havingjurisdiction in the area concerned, determine places at which motor vehiclesmay stand either indefinitely or for a specified period of time, and maydetermine the places at which public service vehicles may stop for a longertime than is necessary for the taking up and setting down of passengers.' 5. incidentally we may mention that this section continued in force untilthe travancore-cochin motor-vehicles act was replaced partially by the.....
Judgment:

Mudholkar, J.

1. The Municipal Council, Palai, the appellant before us, passed aresolution on September 12, 1958 providing for the use from October 1, 1958 ofa public bus stand constructed by it for stage carriage buses starting from andreturning to the municipal limits of Palai or passing through its limits. A feeRe. 1 per day was to be charged on every such bus and 50 nP. per day on buseswhich merely pass through the municipal limits. The resolution also prohibitedthe use after that date of any other public place or the sides of any publicstreet within Palai municipal limits as a bus stand or a halting place. At therequest of the bus operators the Municipal Council, by a resolution datedSeptember 24, 1958 reduced the rates from Re. 1 to 80 nP. per day and from 50nP. to 40 nP. per day. By a further resolution dated November 22, 1959 theMunicipal Council modified the resolution of September 12, 1958 and insteadimposed a prohibition on using as a bus stand or halting place a public placeor side of a public road within a radius of six furlongs from the Municipal busstand. Some of the operators who were using that bus stand did not pay thecharges due from them for the use of the bus stand. Demand notices were,therefore, issued against them. The respondent in this appeal, Joseph, as wellas the respondents in the other two appeals, Anthony and Eapen, Who wererecipients of such notices preferred writ petitions before the High Court ofKerala Challenging the validity of the action taken by the Municipal Counciland praying for quashing of the demand notices issued against them.

2. It may be mentioned that the various resolutions of the Municipal Councilto which we have adverted were passed by it in exercise of the powers conferredupon it by s. 286 and 287 of the Travancore District Municipalities Act, XXIIIof 1116 M.E. (which corresponds to A.D. 1941). Those provisions read thus :

'286 (1) The MunicipalCouncil may construct or provide public landing places, halting places andcart-stands and may levy fees for the use of the same.

(2) A statement in English and alanguage of the district of the fees fixed by the Council for the use of suchplace shall be put up in a conspicuous part thereof.

Explanation : A cart-stand shall,for the purposes of this Act include a stand for carriages and animals.

287 : Where a Municipal Councilhas provided a public landing place, halting place or cart-stand, the executiveauthority may prohibit the use for the same purpose by any person within suchdistance, thereof, as may be determined by the Municipal Council, of any publicplace or the sides of any public street.'

3. The reason given by the Municipal Council for taking action under theseprovisions is that about 80 stage carriage buses start, halt in, or passthrough the municipal limits of Palai and the members of the public using themwere being put to serious inconveniences for want of a proper waiting room andother necessary conveniences. Further, the unsystematic manner in which thebuses were parked and plied affected the sanitation of the town. In order toimprove matters the Municipal Council claims to have utilised a plot of landworth Rs. 50,000 located almost at the center of the town and constructed a busstand at a cost Rs. 80,000 wherein, among other things, it has provided separatewaiting rooms for men and women, sitting accommodation, electric fans, sanitaryconveniences, drinking water etc., as also garages and booking offices free ofcost for bus operators using the bus stand. It is claimed on behalf of theMunicipal Council that by establishing the bus stand it has not only actedwithin the scope of the powers conferred by the Act but also in public interestand for preserving the health and sanitation of the town.

4. On behalf of the respondents it was contended that the provisions of Sections286 and 287 of the Travancore District Municipalities Act stood repealed byimplication by virtue of the provisions of s. 72 of the Travancore-Cochin MotorVehicles Act, 1125 M.E. (corresponding to A.D. 1950) which came into force onJanuary 5, 1950. That section reads as follows :

'Government or any authority authorised in thisbehalf by Government may, in consultation with the local authority havingjurisdiction in the area concerned, determine places at which motor vehiclesmay stand either indefinitely or for a specified period of time, and maydetermine the places at which public service vehicles may stop for a longertime than is necessary for the taking up and setting down of passengers.'

5. Incidentally we may mention that this section continued in force untilthe Travancore-Cochin Motor-Vehicles Act was replaced partially by the MotorVehicles Act, 1939 (Central Act 4 of 1939) on its extension to TravancoreCochin by Part B States (Laws) Act, 1951 (Central Act 3 of 1951). The Central Act,of course, has no bearing upon the argument advanced before us because if infact Sections 286 and 287 were repealed by implication by s. 72 of the TravancoreCochin Motor Vehicles Act the effect of the partial replacement of theTravancore Cochin Motor Vehicles Act by the Central Motor Vehicles Act does notfall to be considered.

6. The High Court accepted the contention urged by the respondents in thesethree appeals and observed :

'The T. C. Motor Vehicles Act, 1125 was enacted, asthe preamble shows, in order to provide 'a uniform law relating to motorvehicles' and we see no reason why sections like 286 and 287 to the extent theymilitate against such uniformity should not be considered as having beenrepealed by implication.'

7. In support of their conclusion they have placed reliance upon certaindecisions. The first of these decisions is Daw v. The Metropolitan Board ofWorks (1862) 142 E.R. 1104. The High Court quoted the following observationsof Erle C.J., as supporting its conclusion :

'I think that where the same power is given in twodifferent bodies to number houses, the exercise of these powers concurrently byboth bodies would be entirely destructive of the object of which they wereconferred; they cannot, therefore, exist together, and in accordance withgeneral principles, the power more recently conferred overrides that which wasconferred by the prior Act.'

8. That was a case where action had been brought by a Clerk of theCommissioners of Sewers of the City of London against the Metropolitan Board ofWorks for recovery of damages resulting from the defacement of numbers ofhouses by the Metropolitan Board of Works from houses in Fann Street,Adlersgate. Those numbers had been inscribed by the Commissioners of Sewers byvirtue of the powers conferred upon them by the City of London Sewers Act,1848, with regard to the sanitation and management of the City of London. TheMetropolis Local Management Act, (18 & 19 Vict. c. 120) which was passed inthe year 1855 was intended to provide for the better sewerage, drainage etc.,of the whole of the metropolis and s. 141 thereof made a general provision asto naming streets and numbering houses. It is in exercise of this power thatthe Board effaced the numbers which had been inscribed by the Commissioners ofSewers on certain houses and put different numbers on them. The court foundthat the powers conferred by the two statutes were substantially, though notstrictly, the same. It also found that in respect of certain matters the powersconferred by the Commissioners of Sewers of the City of London Act waspreserved. But in respect of certain general matters the whole work in theMetropolis was expressly brought within the jurisdiction of the MetropolitanBoard of Works and s. 141 gave the Board a general authority over the whole ofthe Metropolis including the City of London. After stating the generalprinciples of construction, the court said that as soon as the legislature isfound dealing with the same subject matter in two acts, so far as the laterstatute derogates from and is inconsistent with the earlier one, thelegislature must be held to have intended to deal in the later statute with thesame subject matter which was within the ambit of the earlier one. Upon thisview they held that the Metropolitan Board of Works had authority to namestreets and number houses in the City of London and that the orders of theBoard as to numbering of houses in the City of London override the order of theCommissioners in the same matter. A question was posed before the court as towhether the Commissioners of Sewers of the City of London had authority tonumber the houses and buildings in the streets in the City of London under s.145 of the City of London Sewers Act even after the passing of the MetropolitanLocal Management Act. the learned Judges declined to answer that question andErle C.J. said :

'When the metropolitan board of works choose tointerfere in a matter which is entrusted to them by the general act, the citycommissioners are subject to the metropolitan board. But, whether a concurrentjurisdiction is given to the city commissioners, where the metropolitan boardhave not chosen to exercise their powers, is a question upon which it will beour duty to pronounce an opinion when the point is properly presented tous.'

9. What has to be noted in this case is that the laws with which the courtwas concerned covered more or less the same subject matter and had the sameobject to serve. Further, this decision has kept at large the question whetherpowers conferred upon one authority by an earlier Act could continue to beexercised by that authority after the enactment of a provisions in a subsequentlow conferring wide powers on another authority which would include some of thepowers conferred by the earlier statute till the new authority chose toexercise the powers conferred upon it.

10. The second decision relied upon is The Great Central Consumers Co. v.Clarke (1863) 143 E.R. 331. That was a case in which a company incorporatedunder a private Act was restricted to charge 4 shillings per 1,000 cft. of gassupplied by it. By a subsequent public Act for the supply of gas to themetropolis an increased standard of purity and illuminating power was requiredof the companies electing to adopt the provisions of that Act as to price,purity and illuminating power and an increased charge was allowed to be made bythem. The question was whether the company was restricted to charge only 4shillings per 1000 cft. of gas supplied by it. It was urged on behalf of thecompany that the later Act repealed the earlier one and, that therefore, thecompany was not restricted to the charge of 4 shillings. After quoting theprovision in the private Act containing the restriction the court observed :

'Although that section is not in terms repealed,yet it becomes a clause in a private act of parliament quite inconsistent witha clause in a subsequent public act. That is sufficient to get rid of theclause in the private act. Looking at the 19th section of the general act, wethink it is impossible to read it otherwise than as repealing the 24th sectionof the private act. We are bound as well by the plain words of the act as bythe general scope and object of it, and also by the justice of the case.'

11. It will thus be seen that the foundation of the decision was that thelater statute was a general one whereas the previous one was a special one and,therefore, the special statute had to give way, to the later general statute.

12. We have not been able to trace the third case upon which the learnedJudges have relied because the reference which they have given of that case inthe judgment is incomplete. They have merely stated '103 LJKB'without stating the page of the report or the names of the parties.Unfortunately all the citations of the High Court suffer from the latterdefect. They have, however, given the following quotations from the judgment ofScrutton, L.J., and Maugham, L.J. The quotation from the former is :

'I repeal the previous Actalso in another way, namely, by enacting a provision clearly inconsistent withthe previous Act.

The quotation from the judgmentof Maugham, L.J. is :

'It is quite plain that theLegislature is unable, according to our constitution, to bind itself as to theform of subsequent legislation; and it is impossible for Parliament to say thatin no subsequent Act of Parliament dealing with this same subject-matter shallthere be an implied repeal.'

13. The latter observations make it clear that the doctrine of impliedrepeal was invoked while considering two statutes - one earlier and the otherlater - the subject-matter of both of which was the same.

14. The High Court then quoted certain observations of Issacs J., in anAustralian case Goodwin v. Phillips (1908) 7 C.L.R. 16, which are much tothe same effect as those of Maugham, L.J. Finally, they have relied upon thestatement of law made in Sutherland on Statutory Construction, Vol. I, p. 460.The substance of what they have quoted is that the doctrine of implied repealis well-recognised, that repeal by implication is a convenient form oflegislation and that by using this device the legislature must be presumed tointend to achieve a consistent body of law.

15. It is undoubtedly true that the legislature can exercise the power ofrepeal by implication. But it is an equally well-settled principle of law thatthere is a presumption against an implied repeal. Upon the assumption that thelegislature enacts laws with a complete knowledge of all existing lawspertaining to the same subject and the failure to add a repealing clauseindicates that the intent was not to repeal existing legislation. Of course,this presumption will be rebutted if the provisions of the new act are soinconsistent with the old ones that the two cannot stand together. As has beenobserved by Crawford on Statutory Construction, p. 631, para 311 :

'There must be what is often called 'such apositive repugnancy between the two provisions of the old and the new statutesthat they cannot be reconciled an made to stand together'. In other words theymust be absolutely repugnant or irreconcilable. Otherwise, there can be noimplied repeal.........for the intent of the legislature to repeal the oldenactment is utterly lacking.'

16. The reason for the rule that an implied repeal will take place in theevent of clear inconsistency or repugnancy, is pointed out in Crosby v. Patch[18 Calif 438 quoted by Crawford 'Statutory Construction' p. 633.],and is as follows :-

'As laws are presumed to be passed withdeliberation, and with full knowledge of all existing ones on the same subject,it is but reasonable to conclude that the Legislature, in passing a statute,did not intend to interfere with or abrogate any former law relating to thesame matter, unless the repugnancy between the two is irreconcilable. Bowen v.Lease 5 Hill 226. It is a rule, says Sedgwick, that a general statute withoutnegative words will not repeal the particular provisions of a former one,unless the two acts are irreconcilably inconsistent. The reason and philosophyof the rule,' says the author, 'is, that when the mind of the legislator hasbeen turned to the details of a subject, and he has acted upon it, a subsequentstatute in general terms or treating the subject in a general manner, and notexpressly contradicting the original act, shall not be considered as intendedto affect the more particular or positive previous provisions, unless it isabsolutely necessary to give the latter act such a construction, in order thatits words shall have any meaning at all.'

17. For implying a repeal the next thing to be considered is whether the twostatutes relate to the same subject matter and have the same purpose. Crawfordhas stated at p. 634 :

'And, as we have already suggested, it is essentialthat the new statute covers the entire subject matter of the old; otherwisethere is no indication of the intent of the legislature to abrogate the oldlaw. Consequently, the later enactment will be construed as a continuation ofthe old one'.

18. The third question to be considered is whether the new statute purportsto replace the old one in its entirety or only partially. Were replacement ofan earlier statute is partial, a question like the one which the court did notchoose to answer in Daw's case (1862) E.R. 1104, would arise for decision.

19. It must be remembered that at the basis of the doctrine of impliedrepeal is the presumption that the legislature which must be deemed to know theexisting law did not intend to create any confusion in the law by retainingconflicting provisions on the statute book and, therefore, when the court appliesthis doctrine it does no more than give effect to the intention of thelegislature ascertained by it in the usual way i.e., by examining the scope andthe object of the two enactments, the earlier and the later.

20. The further question which is to be considered is whether there is anyrepugnancy between the old and the new law. In order to ascertain whether thereis repugnancy or not this court has laid down the following principles in DeepChand v. The State of Uttar Pradesh (1959) 2 S.C.R. 8 :

1. Whether there is directconflict between the two provisions;

2. whether the legislatureintended to lay down an exhaustive code in respect of the subject matterreplacing the earlier law;

3. whether the two laws occupythe same field.

21. Another principle of law which has to be borne in mind is stated thus bySutherland on Statutory Construction [(Vol. 1, 3rd Edu. p. 486.] :

'Repeal of special and local statutes by generalstatutes : The enactment of a general law broad enough in its scope andapplication to cover the field of operation of a special or local statute willgenerally not repeal a statute which limits its operation to a particular phaseof the subject covered by the general law, or to a particular locality withinthe jurisdictional scope of the general statute. An implied repeal of priorstatutes will be restricted to statutes of the same general nature since the legislatureis presumed to have known of the existence of prior special or particularlegislation, and to have contemplated only a general treatment of thesubject-matter by the general enactment. Therefore, where the later generalstatute does not propose an irreconcilable conflict, the prior special statutewill be construed as remaining in effect as a qualification of or exception tothe general law.'

22. Of course, there is no rule of law to prevent repeal of a special by alater general statute and, therefore, where the provisions of the specialstatute are wholly repugnant to the general statute, it would be possible toinfer that the special statute was repealed by the general enactment. A generalstatute applies to all persons and localities within its jurisdiction and scopeas distinguished from a special one which in its operation is confined to aparticular locality and, therefore, where it is doubtful whether the specialstatute was intended to be repealed by the general statute the court should tryto give effect to both the enactments as far as possible. For as has beenpointed out at p. 470 of Sutherland on Statutory Construction, Vol. RI wherethe repealing effect of a statute is doubtful, 'the statute is to bestrictly construed to effectuate its consistent operation with previouslegislation.'

23. In the case before us the contention is not that the whole of theDistrict Municipalities Act has been abrogated by the Motor Vehicles Act butthat s. 72 of the latter Act is the complete law on the subject of determiningparking places for motor vehicles and that in so far as Sections 286 and 287 of theTravancore District Municipalities Act are in conflict with that law, they mustgive way to it or in other words they must be deemed to have been repealed byimplication. The general principles which apply to a consideration of thequestion whether the later enactment repeals an earlier one by implication willalso have to be applied to the kind of case which is before us.

24. We have already quoted s. 72 of the Travancore-Cochin Motor VehiclesAct. It empowers the Government or an authority authorised by it to determinein consultation with a local authority places at which motor vehicles may standor halt. Section 286 of the Travancore District Municipalities Act empowers theMunicipal Council to construct or provide public halting places and cart standsand levy fees for their use. On the face of it, we do not see any inconsistencybetween the two provisions because it is open to the Municipal Council toexercise its powers under s. 286 and charge fees from bus owners making use ofthe conveniences provided by it. Simultaneously with the exercise of the powerunder that section by the Municipal Council the Government or other appropriateauthority may exercise the power under s. 72 and there will be no conflict inthe exercise by them of their respective powers. Since the powers under thisprovision are to be exercised in consultation with a local authority inpractice actual conflict may be obviated by the Government not exercising itspowers under s. 72 of the Travancore-Cochin Motor Vehicles Act where theMunicipality has taken action under Sections 286 and 287 of the Travancore DistrictMunicipalities Act. Even assuming that it does, it will have to do so inconsultation with the Municipality and it may be legitimate to expect that theultimate action would be such as not to bring about any conflict.

25. It has also to be borne in mind that s. 72 of the Travancore-CochinMotor Vehicles Act was enacted for the purpose of enabling the Government andthe appropriate authority to make provisions for parking places not only inmunicipal areas but in non municipal areas as well as also in municipal areaswhere the municipality has taken no action under s. 286. Would it then beproper to say that there is a conflict between s. 286 of the TravancoreDistrict Municipalities Act and s. 72 of the Travancore-Cochin Motor VehiclesAct The latter provision has a wider territorial application than the formerand can in that sense be said to be a general one, while the former beingapplicable only to municipal areas is a special one. Being a special provisions. 286 cannot readily be considered as having been repealed by the more generalprovision of s. 72 of the Travancore Cochin Motor Vehicles Act. But we mustbear in mind that s. 286 does not stand by itself and in order to effectuatethe purpose underlying it the legislature has enacted s. 287, apparentlyintending that when action is taken by a municipality under s. 286 it may alsotake consequential action under s. 287.

26. Could it, therefore, be said that there is conflict between Sections 286 and287 on the one hand and s. 72 of the Travancore-Cochin Motor Vehicles Act onthe other because while under s. 287 a municipality can prohibit the use as ahalting place of any place within a specified distance of the bus standconstructed by it, the Government or other appropriate authority can by orderpermit places within the prohibited area to be used as halting places It is urgedbefore us on behalf of the Municipal Council that until action is taken unders. 72 of the Travancore Cochin Motor Vehicles Act which will have such result,in cannot be said that a conflict will arise and that until such conflictactually takes place, the old provision must stand. In support of thiscontention learned counsel refers us to the decision of Sulaiman J., inShyamakant Lal v. Rambhajan Singh (1939) F.C.R. 193. There, the learnedJudge in his judgment has stated the principles of construction to be appliedwhen the question arises as to whether provincial legislation is repugnant toan existing Indian law. In the course of his judgment the learned Judge hasobserved :

'Further, repugnancy must exist in fact, and notdepend merely on a possibility.'

27. He relied upon the decision in Attorney-General for Ontario v.Attorney-General for the Dominion (1896) A.C. 348, in support ofhis view. In that case there was a prior provincial law enabling localauthorities to adopt certain provisions of a provincial law for enforcingprohibition. Then a later Dominion law was enacted called the Canada TemperanceAct, 1886 which provided that part II of that law could be brought intooperation in a province by an order of the Governor General of Canada inCouncil. It may be mentioned that there were certain provisions in the DominionAct which purported to repeal the prohibitory provisions of the provincial Act.The Privy Council held that those provisions were ultra vires. It was contendedbefore the Privy Council alternatively that the provisions of the ProvincialAct being repugnant to the Dominion Act stood repealed by implication by theprovisions of part II of the Dominion Act by resorting to which localauthorities could introduce prohibition in their areas. The Privy Councilpointed out that those provisions were inapplicable until an order was made bythe Governor General of Canada in Council applying Part II of the Act to aprovince and in fact no such order was made. That case is clearlydistinguishable because Part II of the Act had not come into force at all andsince it was not in force in a province the question of its being in conflictwith the provincial law did not arise.

28. It seems to us however, clear that bearing in mind the fact that theprovisions of s. 72 of the Travancore Cochin Motor Vehicles Act were intendedto apply to a much wider area than those of Sections 286 and 287 of the TravancoreDistrict Municipalities Act it cannot be said that s. 72 was intended to replacethose provisions of the Travancore District Municipalities Act. The proper wayof construing the two sets of provisions would be to regard s. 72 of theTravancore-Cochin Motor Vehicles Act as a provision in continuity with Sections 286and 287 of the Travancore District Municipalities Act so that it could beavailed of by the appropriate authority as and when it chose. In other wordsthe intention of the legislature appears to be to allow the two sets ofprovisions to co-exist because both are enabling ones. Where such is theposition, we cannot imply repeal. The result of this undoubtedly would be thata provision which is added subsequently, that is, which represents the latestwill of the legislature will have an overriding effect on the earlier provisionin the sense that despite the fact that some action has been taken by theMunicipal Council by resorting to the earlier provision the appropriateauthority may nevertheless take action under s. 72 of the Travancore CochinMotor Vehicles Act, the result of which would be to override the action takenby the Municipal Council under s. 287 of the District Municipalities Act. Noaction under section 72 has so far been taken by the Government and, therefore,the resolutions of the Municipal Council still hold good. Upon this view it isnot necessary to consider certain other points raised by learned counsel.

29. For these reasons we allow the appeals and set aside the orders of theHigh Court and quash the writs issued by it. There will, however, be no orderas to costs as to respondents have not appeared.

30. Appeals allowed.


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