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Bhanwar Lal and ors. Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 265 of 1956
Judge
Reported inAIR1959Raj257
ActsAjmer Shops and Commercial Establishments Act, 1956 - Sections 1(3), 2(1), 4, 42 and 43(1); Constitution of India - Articles 19(1), 239, 245, 254(1) and 366(10); Government of Part 'C' States Act, 1951 - Sections 21 and 22; Weekly Holidays Act, 1942; Government of India Act, 1935
AppellantBhanwar Lal and ors.
RespondentState of Rajasthan and anr.
Appellant Advocate R.C. Jain, Adv.
Respondent Advocate G.C. Kasliwal, Adv. General
DispositionPetition dismissed
Cases ReferredSri Tagannath Ramanuj Das v. State of Orissa
Excerpt:
- - these provisions are clearly for the welfare of the labour including the conditions of work and fall within item no. it means what we may call 'in public interest'.the provisions for better conditions of labour and service are undoubtedly in public interest learned counsel for the petitioners urged that certain rules made by the chief commissioner, ajmer, were very stringent and restricted the rights of the petitioners to carry on the trade, occupation on business. the determination as to how much fee is to be paid for registration by the establishment is a matter of detail and the legislature could well have left this matter for the determination of the state government......public. 6. that under section 1(3) of the act it was to come into force on such date as the state government may by notification in the official gazette appoint in this behalf and the state government was defined under section 2(1)(w) as the chief commissioner, ajmer. this definition was contrary to article 239 or the constitution under which the former state of ajmer was administered by the president acting through the chief commissioner, and the act could only be brought into force by order of the president and not otherwise. for the same reason, the rules framed under the act could not be brought into force by the chief commissioner. 7. that the imposition of the registration fee is in the nature of a tax, the imposition of which could not be delegated to the executive.....
Judgment:

Bhandari, J.

1. This is a writ petition under Article 226 of the Constitution of India.

2. The petitioners are shopkeepers carrying on business at Ajmer in the erstwhile State of Ajmer. The Legislative Assembly of Ajmer passed the Ajmer Shops and Commercial Establishments Act, 1956 (Ajmer Act No. IV of 1956) (hereinafter called the Act), which received the assent of the President of India on 25-6-1956, and came into force on 1-8-1956. On 17-12-1956 the petitioners were called upon to get their shops registered for the year 1957 under Section 4 of the Act by payment of Rs. 2/- per year as registration fee. This petition was filed on 20-12-1956, challenging validity of the Act on several grounds. The material points which are taken up in this petition as amplified at the time of arguments may be summed up as follows :

1. That the Legislative Assembly of Ajmer was not competent to enact the said Act and it is ultra vires the State Legislature.

2. That the provisions of the Act are in conflict with the provisions of the Weekly Holidays Act (Act No. XVIII of 1942) which had been made applicable to the State of Ajmer,

3. That by S. 43 of the Act. the Weekly Holidays Act was repealed on and from the date of the commencement of the Act, but the Legislature of the State of Ajmer, was not competent to repeal that Act.

4. That the provisions of the Weekly Holidays Act continued to remain in force, and the provisions of the Act in so far as they are repugnant to the provisions of the Weekly Holidays Act, could not prevail, and were to the extent of repugnancy void by virtue of Article 254 of the Constitution and also by virtue of Section 22 of the Government of Part 'C' States Act. 1951.

5. That the provisions of the Act are void as they infringe the rights of the citizens to practise any profession or to carry on any trade or business, conferred under Article 19 of the Constitution, and the restrictions imposed by the Act are not saved as they are not reasonable and in the interest of the general public.

6. That under Section 1(3) of the Act it was to come into force on such date as the State Government may by notification in the official gazette appoint in this behalf and the State Government was defined under Section 2(1)(w) as the Chief Commissioner, Ajmer. This definition was contrary to Article 239 or the Constitution under which the former State of Ajmer was administered by the President acting through the Chief Commissioner, and the Act could only be brought into force by order of the President and not otherwise. For the same reason, the rules framed under the Act could not be brought into force by the Chief Commissioner.

7. That the imposition of the registration fee is in the nature of a tax, the imposition of which could not be delegated to the executive authority.

3. On behalf of the State of Rajasthan it was stated that the Legislative Assembly of the Sate of Ajmer could make laws for or any part of the State of Ajmer with respect to any of the matters enumerated in the State list or in the Concurrent List of the Seventh Schedule of the Constitution. It was urged that the provisions of the Act fell within Item Nos. 23 and 24 of the Concurrent List and also within Item No. 26 of the State List, and that after the Bill had been passed by the Legislative Assembly of the State, it was presented to the Chief Commissioner, and the Chief Commissioner reserved it for the consideration of the President, and the President assented to it on 25-6-1956. The Act was, therefore, within the legislative competence of the Legislature of the State of Aimer duly made under the provisions of Sections 21 and 26 of the Government of Part C States Act, 1951 (Act No. XLIX of 1951).

4. With regard to the Weekly Holidays Act, it was submitted that that it was not the law made by the Parliament and it would not prevail over the provisions of the Act. The Weekly Holidays Act could come in force in a province or in a specified area only, if the Provincial Government by a notification in the official gazette so desired, and it wasi in that manner brought into force in the State of Ajmer. The State Government was fully competent to withdraw its application to the State of Ajmer. It was further submitted that the provisions of the Act did not infringe Article 19(1)(g) of the Constitution as that law was made in the general interests of the public, inasmuch as it purported to promotethe welfare of the labour, and the restrictions, if any on the right of the citizens to practise any profession or to carry on any trade or business were reasonable.

With regard to the bringing into operation of the provisions of the Act, it was submitted that the Chief Commissioner was competent to do it and the definition of the State Government in Section 2(1)(w) as meaning the Chief Commissioner, Ajmer, did not in any way offend Article 239 of the Constitution. The same argument was submitted with respect to the framing of the Rules. It was further urged that the rules were framed after pre-publication and they were enforced only after the) Act had been brought into force on 1-8-1956. It was also urged that the registration fee is not in the nature of a tax.

5. The former State of Ajmer had no legislature when the Constitution of India came into force. Under Article 240(1). the Parliament was empowered to enact a law creating for any State specified in Part C of the First Schedule, a body to function as a Legislature for the State with such constitution, powers and functions as may be specified in that law. Such law was enacted bv the Parliament and called the Government of Part C States Act, 1951. Under Section 21 (1) of this Act, the Legislative Assembly of the State of Ajme' could make laws for the whole or any part of the! State with respect to any of the matters enumerated in the State List and the concurrent list subject to certain exceptions with which we are not concerned here.

6. We have to see whether the Act in question has been made in conformity of the powers granted to the Legislative Assembly of the forme* State of Ajmer.

7. The main provisions of the Act relate to the regulation of the working hours, payment of wages, leave, holidays, terms of service and other conditions of the work of persons employed in the shop and other commercial establishments.

8. The substantial provisions begin with Chapter III. Section 7 provides that no employee in any establishment shall be required or allowed to work for more than ten hours on any day and 54 hours in a week. Section 8 provides for extra wages for overtime work. Section 9 relates to interval for. rest. Section 10 provides for the period of work as to be spread over. These provisions are clearly for the welfare of the labour including the conditions of work and fall within Item No. 24 of the Concurrent List.

9. Section 11 provides for opening and closing hours of an establishment, and Section 12 provides that every establishment shall remain closed for one day. These two sections relate to the regulation of trade and commerce. Regulation of trade and commerce comes under Item No. 26 of the State List. Sections 11 and 12 of the Act also fall under Item No 24 of the Concurrent List. Reference may be made to Manoharlal v. The State, AIR 1951 SC 315. We hold that Sections 11 and 12 of the Act fell both within Item 24 of the Concurrent List and Item 26 of the State List in the seventh Schedule of the Constitution.

10. Chapter IV provides for leave with wages, Chapter V for payment of wages, and Chapter VI deals with employment of children and women They are for the welfare of the labour and fall within Item No. 24 of the Concurrent List. The other Chapters except Section 43 (I), declaring the repeal of the Weekly Holidays Act, 1952, are ancillary provisions for the enforcement of the provisions of Chapters III to VI. Thus except for Section 43(1),it cannot be said that the Legislative Assembly of the State of Aimer was not competent to enact the provisions of the Act. We, therefore, reject the first contention of the learned counsel for the petitioners and hold that it was within the competence of the Legislative Assembly of Aimer to enact the Ajmer Shops and Commercial Establishments Act, 1956. We shall deal with Section 43 (1) separately.

11. The contentions Nos. 2, 3 and 4 raised on behalf of the petitioners raise allied questions. The Central Legislature under the Government of India Act enacted the Weekly Holidays Act (Act No. XVIII of 1942). It was brought into force in the area covered by the former State of Ajmer.

12. We may examine some of the provisions of that Act. Section 3 deals with the closing of the shop. Section 4 deals with weekly holidays is shops, restaurants and theatres. Section 5 deals with additional half day closing or holiday. Section 6 deals with the provisions that no deduction or abatement to be made from wages. These provisions are of the same nature as contained in Chapter III of the impugned Act. and fall within Item-27 of the Concurrent List.

13. Two questions, therefore, arise in this! connection:

1. Whether the Legislative Assembly of the State of Ajmer could directly repeal the Weekly Holidays Act by Section 43(1) of the Act? And

2. Whether there is a repeal by implication of any provisions of the Weekly Holidays Act by the enactment of the Ajmer Shops and Commercial Establishments Act. 1956.

14. Generally, the power of repeal depends upon the competence of the Legislature to enact the provisions of the Law which it sought to repeal. If it is exclusively within the competence of the Legislature repealing the enactment to legislate on the subject dealt by that enactment, it has power to repeal it.

15. This can be directly done by repealing it or by enacting any other law which directly covered the field occupied by the repealed enactment. In the second case there is a repeal by implication.

16. The Weekly Holidays Act was an existing law within the definition given to that term in Article 366(10) of the Constitution. Article 254(1) lays down that if any provision of law made by the Legislature of A State is repugnant to any provision of an existing law with respect to any of the matters enumerated in the Concurrent List, then the existing law shall prevail, and the law made by the legislature would, to the extent of repugnancy, be void. By Section 43 (1) of the Act, the Weekly Holidays Act is repealed. This provision is directly repugnant to the continuance in force of the Weekly Holidays Act, Under Article 254(1), the provisions of the Weekly Holidays Act prevail, and the new law to the extent of repugnancy is void.

17. Section 22 of the Government of Part C States Act is really not applicable, as the Weekly Holidays Act was not enacted by Parliament but had been enacted prior to the enforcement of the Constitution. Learned Advocate General argued that the Weekly Holidays Act was brought into force by the Provincial Government. The same Government had the right to withdraw its application in future and this is what has been done by enacting Section 43(1) of the Act. In our opinion this argument has got no force for two reasons. The first is that the Provincial Government had been given the power by Section 1 (3) of the Weekly Holidays Act to bring it into force by notification in the official Gazette, but it had no power to withdraw its application. Thesecond reason is that it is not the Provincial Government or the State Government which has withdrawn the application of the Weekly Holidays Act. It is the Legislature of the State which has enacted a law repealing the Weekly Holidays Act--a law an respect of a matter falling in the Concurrent List. As already mentioned, under Article 254(1) the existing law is to prevail. In our opinion Section 43 (1) of the Act is void and of no effect.

18. For the same reasons the provisions of the Act in so far as they are inconsistent with the provisions of the Weekly Holidays Act are of no! effect, and under Article 254(1) the provisions of the Weekly Holidays Act will prevail. It is not necessary for us in this case to enter into a detailed discussion on the question as to which are the provisions of the Act which are directly repugnant to the provisions of the Weekly Holidays Act. The discussion will only be academic at this stage. But we may point out that there is manifest repugnancy in some respects, e.g., the matter of punishment. Under Section 35 of the Act, the sentence to be imposed is much more than the sentence provided in the Weekly Holidays Act for the same offence.

19. We are of opinion that the provisions of the Weekly Holidays Act continue to remain in force and the provisions of the Weekly Holidays Act prevail over the provisions of the Act. In other respects the Act is not affected. This disposes of the contentions Nos. 2. 3 and 4 raised on behalf of the petitioners.

20. The fifth contention of the petitioners is that the Act is void, as it infringes the rights of the citizens to practise any profession or to cany on any trade or business conferred under Article 19(1)(g) of the Constitution. The Act is a piece of legislation regulating the hours of work, payment of wages, leave, holidays, terms of service and other conditions of work of persons emoloyed in the shops and other commercial establishments. The restrictions are obviously in the interests of a section of the public. The phrase 'in the interests of the general public' does not mean the interests of the whole of the public. It means what we may call 'in public interest'.

The provisions for better conditions of labour and service are undoubtedly in public interest Learned counsel for the petitioners urged that certain rules made by the Chief Commissioner, Ajmer, were very stringent and restricted the rights of the petitioners to carry on the trade, occupation on business. In this Writ Petition it is not stated as to which of the rules unduly restricted the rights of the petitioners. In the absence of specific pleadings on this point, we cannot enter into an academic discussion on this subject.

21. Now, we take into consideration the sixth contention raised on behalf of the petitioners. The Act received the assent of the President on 25-6-1956, and was published in the Gazette of India dated 5-7-1956. It provided in Section 1(3) that it shall come into force on such date as the State Government may by notification in the official gazette appoint in that behalf. It was brought into force from 1-8-1956, by notification issued by the Chief Commissioner of the State of Aimer. It is urged thai! under Article 239 of the Constitution the State of Ajmer was administered by the President, and it was the President who could have brought it into force and not the Chief Commissioner.

This argument overlooks the fact that under Article .239 the President may act, to such extent aS he thinks fit, through a Chief Commissioner, Under Section 38(2) of the Government of Part C States Act, 1951, all executive action of the Chief Commissioner whether taken on the advice of his Ministers or otherwise is to be taken in the name of the Chief Commissioner. In the Act which had received the assent of the President, the State Government has been denned as meaning the Chief Commissioner, Ajmer. As the Act has received the assent! of the President, it may be taken that the Chief Commissioner was authorised by the President to bring the Act into force.

Under Article 239 the President could carry on the business of the Ajmer State through a Chief Commissioner. This postulates that he could authorise the Chief Commissioner to bring the Act into force. There is no flaw in the bringing of the Act! into force by the Chief Commissioner. This contention of the learned counsel has got no force; For the same reasons the rules under the Act could also be made by the Chief Commissioner. We find no substance in this contention raised on behalf of the petitioners.

22. Now we take up the last contention raised on behalf of the petitioners that the registration fee is in the nature of a tax, the imposition of which could not be delegated to an executive authority. The argument is that the Legislature of the State of Ajmer should have enacted in the Act as to what fees are to be paid on the registration of the establishment and should not have left it to the Chief Commissioner to frame rules on this point. Under Section 42 of the Act the State Government is authorised to make rules for the purpose of carrying into effect the provisions of the Act. Section 4 of the Act lays down that every establishment shall send to the Inspector of the area concerned a statement in prescribed form together with such fees as may be prescribed.

It cannot be said that this recovery of fees isin the nature of a tax. The distinction between atax and a fee has been pointed out by their Lord-ships in a number of cases. Reference may be madeto -- 1. The Commissioner, Hindu Religious Endowments v. Lakshmindra Thirtha Swamiar, AIR 1954 SC 282. 2. Ratilal Panachand v. State of Bombay, AIR 1954 SC 388. 3. Sri Tagannath Ramanuj Das v. State of Orissa, AIR 1954 SC 400. Now in this case the fees are levied on the registration of establishment. This registration is necessary in order to carry out the purpose of the Act which is to regulate the conditions of work in employments, shops and commercial establishments. If a sum of money is demanded under Section 4 from the employer for the registration of establishment, it cannot be said that it is a sum demanded from him for which no benefit or service has been provided.

It is levied in consideration of certain services and it is to be utilised for rendering those services; Such a sum cannot be called a tax in the proper sense of the term. The Legislature of the State of Ajmer laid down the broad principles in the Act, and left it to the State Government to work out the details. The determination as to how much fee is to be paid for registration by the establishment is a matter of detail and the Legislature could well have left this matter for the determination of the State Government. We do not think that there has been any improper delegation in the matter of determination of fees by the State of Ajmer. We do not find any force in this contention.

23. This disposes of all the relevant points raised by the petitioners in their writ petition. In our opinion, the Act was within the Legislative competence of the Legislature of the State of Ajmer, but it could not repeal the Weekly Holidays Act, 1942. The provisions of Section 43 (1) of the Act are void. The provisions of the Act are also of no effectin so far as they are repugnant to the provisions of the Weekly Holidays Act. The Act did not offend Article 19 of the Constitution of India. The Act could be brought into force by the Chief Commissioner, and he could also frame rules under the Act. The Inspector appointed under the Act was entitled to take steps for the registration of shops and for the collection of registration fee. The petitioners are, therefore, not entitled to any relief in this writ petition.

24. The writ petition is dismissed. In view of our decision that Section 43 (1) is invalid, and that the provisions of the Weekly Holidays Act prevail over the provisions of the Ajmer Shops and Commercial Establishments Act, 1956, we do not award any costs to the opposite parties. The parties will bear their own costs.


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