Case Study - Vijay Kumar Sharma V State Of Karnataka (Air 1990 Sc 2072)

Part XI of the Indian Constitution describes the legislative relations between the States and the Centre. Article 254 to establish the doctrine of Repugnancy is one of the laws laid down under the Indian Constitution as a safeguard to solve disputes arising between the states and the Union. ‘Repugnancy’ is meant to express ‘conflict’, whereby there is an expressed inconsistency between the State-made law and the Union-made law.

Case details:Bench Majority opined- Mishra Rangnath, Sawant  P.B and desenting view Ramaswamy. K.

Relevant statutory provisions (i) Karnataka Contract Carriages (Acquisition) Act (21 of 1976); s. 14 & s. 20;  (ii) Motor Vehicles Act  1988; s. 74 & s. 80(2); and (iii) The doctrine of Repugnancy: Article 254 of the Indian Constitution.

Reference cases (i) Ch. Tika Ramji v. State of Uttar Pradesh (AIR 1956 SC 676) ; (ii) Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR 1983 SC 1019).

Case Study:

The doctrine deals with List (III) schedule (VII) which declares both the Union and State legislatures competent to legislate. However in case of conflict between the laws, the Union law will prevail if it is made within an entry of List (III), irrespective of whether it the Union law is made by before or after the State Legislature. According to Article 254 (1) an overriding effect is provided to the provisions of a Parliament-made law which the Parliament is competent to enact or in with respect to any matter as enumerated in the List III of Schedule VII. In such a scenario if any provision of a State-made law is in conflict with the Parliament–made law under such circumstance the State-made law is declared void to the extent of repugnancy.

Under List III named as the Concurrent List in Schedule VII of the Indian Constitution both the Union and State Legislatures are competent to make laws on any of the entries mentioned therein. However they are subject to Clause (2) of Article 254 only in case, there is no conflict between the provisions of the said State-made law and a Central Act on the subject. However in case there is a repugnancy in question of a State law and Union law enumerated on one of the subjects of List III, the State law must yield to the Union law unless it has already been reserved for the assent of the President and has duly received so under Article 254 (2). The question of repugnancy therefore rightfully arises when there is a direct conflict between the provisions of the State law and the Union law on the same occupied field. Laws are said to be repugnant ideally when they get involved into taking responsibility for obedience to a higher authority. Simultaneously however certain inconsistent enactments to each of these laws may sometimes be possible without disobeying the other. Thus a suitable instance for repugnancy arises only when legislation falling in List III, the Concurrent List can be cured by resorting to Article 254 (2).

The question of repugnancy under Article 254 arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and it is impossible to obey without disobeying the other, or conflicting results are produced when both the statutes covering the same field are applied to a given set of facts.

In the present case brought to the Supreme Court a conflict between the provisions of a State Act; Karnataka Contract Carriages (Acquisition) Act, 1976 and a Union Act the Motor Vehicles Act 1988 have been discussed. The conflict spoken of is in respect to two entries in the Concurrent List, Schedule VII, where the Karnataka Contract Carriages (Acquisition) Act, 1976 has been made in relation with Entry 42 of List (III), Schedule (VII), and the Parliamentary Act on transport regulation i.e., the Motor Vehicles Act 1988, that has been made in relation to Entry 35 of List (III). The question in the matter was whether Section 14 and 20 of the Karnataka Act was repugnant to Sections 73, 74 and 80 of the Motor Vehicles Act 1988. These writ applications were brought by some of the private carriage owners under Article 32 of the Constitution by a group of disgruntled applicants for contract carriage permits. Their grievance was in regard to action of the concerned transport authorities in Karnataka in not entertaining their applications under the provisions of the Motor Vehicles Act, 1988. The judgment and points of view of the different judges was varying in this case. The majority judgment was given by JJ. Ranganath Misra and JJ. P.B.Sawant and the dissenting opinion was given by JJ. K. Ramaswamy.

The objective of formation of the Karnataka Act 1976, was to prevent the misuse of the contract carriages as they were state-owned property under the State Undertaking of Regional Transport Authority (RTA) and also to provide better facilities for the transportation of passengers by road

and to give effect to the policy of the State mentioned clearly in regard to the Directive Principles of State Policy in A. 39 (b) and (c). towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

The Supreme Court has interestingly observed in Tika Ramji’s case, that no question of repugnancy can arise out of Article 254 where the Union legislation and the State legislation occupy two different fields which necessarily deal with two distinct and separate matters. In the aforesaid case, there was no inconsistency of the Acts enacted by the Parliament and the State as regards Entry 33 of List III. In this scenario the perfect test of repugnancy would be to check whether the Parliament and the State legislature in exercising their competent law-making authority have exercised it on the same subject matter or not. The other scenario can be to check whether laws enacted by the Union were intended to be exhaustive enough to cover the entire field of legislation.

In the present case Section 14 read with Section 20 of the Acquisition Act freezes the right of a citizen to apply for and to obtain permit or special permit to run a contract carriage in terms of the permit and monopoly to run a contract carriage. This was conferred on the State Transport Undertaking Karnataka. But the Motor Vehicles Act, 1988 evinces its intention to liberalize the grant of contract carriage permit by saying in Section 80(2) stating that the Regional Transport Authority “shall not ordinarily refuse to grant the permit”. It also confers the right on an applicant to apply for and authorizes the Regional Transport Authority to grant liberally a contract carriage permit. We clearly observe that the Motor Vehicles Act 1988 accords the right, while the Karnataka Contract Carriages (Acquisition) Act,1976 negates and freezes the self-same right to obtain a permit and to run a contract carriage and prohibits the authorities to invite or entertain an application and to grant a permit to run contract carriage. The Act and the relevant rules cover the entire field of making an application in the prescribed manner and directs the Regional Transport Authority to grant permit with condition attached thereto to run contract carriages.

Thereby there exists the operational incompatibility and irreconcilability of the two sets of provisions. Sections 14(1) and 20(3) of the Acquisition Act are repugnant and inconsistent to Sections 74 and 80 of the Act. By operation of proviso to Article 254 clause (2) of the Constitution, the conflict created by Sections 14(1) and 20(3) of the Acquisition Act to make or invite an application issued to Regional Transport Authority prohibiting to grant contract carriage permit to anyone except to State Transport Undertaking, Karnataka within the State of Karnataka became void following the doctrine of repugnancy. Sections 74 and 80 relating to the grant of the contract carriage permit and the procedure in applying for the grant of such permits respectively are present in the Motor Vehicles Act 1988. This means that when, a scheme is prepared by the State Government entrusting the contract carriage services in relation to any area or route or portion thereof, to a State Transport Undertaking to the exclusion complete or partial of other persons, the provisions of Sections 74 and 80 would have no application, and the private transport operators cannot apply for the grant of contract carriage permits under s. 80 nor can such permits be granted by the Transport Authority. The Motor Vehicles Act 1988 thus also makes a provision for nationalization of routes, and envisages a denial of permits to private operators when routes are so nationalized. Hence it cannot be said that there was a conflict between the provisions of the Karnataka Act and the M.V. Act, 1988.

Whenever we need to know the legitimacy of an existing repugnancy between the Centre and State legislation, the most common test applied is to find out the dominant intention of the two legislations. If the dominant intention i.e. the pith and substance of the two legislations is different, it is assumed that the legislations cover two different subject-matters. There may be instances where the provision of one legislation while giving effect to its dominant intention may incidentally encroach upon the subject and jurisdiction of the other legislation. But such partial coverage to achieve a different purpose does not invoke a solution to the existing conflict under Article 254 (2) of the Indian Constitution. However when the conflict between the impugned legislations concerns the subject matters laid down in List III, the application of the Doctrine of Pith and Substance is illogical and groundless because the conflict is not regarding the want of legal competency. Both the State and the Union Legislatures are competent to make laws under List III. The issue in determining repugnancy is to examine whether the provision of a State-made law has lost its validity because it is conflicting with a law made by the Parliament. Thus according to the opinion of J. K. Ramaswamy the doctrine of pith and substance and dominant intention has no ground of applicability in the present case. It is a clear case of repugnancy whereby the impugned State law has received assent of the President under Article 254 (2) on March 11^th 1976. A Seven Judge Bench upheld the validity of the State statute holding that the impugned statute was an ‘acquisition Act’ within the ambit of Entry 42 of the Concurrent List under Schedule VII of the Constitution was valid. They mainly did so to uphold the federal structure of the Constitution by giving a chance to the State law to survive. By applying the doctrine of pith and substance the Court took note of the fact that even though it may have had some incidental impact on inter-State trade or commerce, the State Law would be upheld.