1. The petitioner in this application is a well-known Company which has installations at Circular Garden Reach Road, Paharpur Road, Calcutta and Budge Budge for the storage of petroleum, petroleum products and kerosene. In the aforesaid installations, the petitioner company stores petroleum by virtue of licenses issued under the Petroleum Act (India Act XXX of 1934). The licenses in force on the relevant dates were as follows:

(I) Paharpur installation-License No. Ben-197 d/- 28-2-48 and License No. Ben-1200 d/- 9-5-1939.

(II) Circular Garden Reach Road Installation-License No. Ben-1202 d/-………………..

(III) Budge Budge Installation-License No. Ben-182 d/-…………………….

2. The Petroleum Act, 1934 was an Act passed by the Indian Legislature, which received the assent of the Governor General on 6-9-1934. It was brought into force on 30-3-1937 by a notification dated 23-3-1937. It is an Act to consolidate and amend the law relating to the import, transport, storage, production, refining and blending of petroleum and other inflammable substances. Section 3 of the said Act provides that no one shall import, transport or store any petroleum save in accordance with the Rules made under S. 4 of the said Act, and also that no petroleum can be transported or stored save in accordance with the conditions of any license for the purpose which he may be required to obtain, by Rules made under S. 4. Section 4 empowers the Central Government to make Rujes, inter aha prescribing the form and conditions of a license for the storage of any petroleum. In exercise of the rulemaking power conferred by S. 4, Rules have been prescribed, known as the “Petroleum Rules, 1937”. Rule 115 prescribes the form in which a license may be granted for the storage of petroleum. The licenses taken out by the petitioner company are in the prescribed form, (form “J”). The form of the license shows that it grants the right to the licensee to store non-dangerous petroleum in the storage-shed described in the license, subject to the provisions of the Petroleum Act, 1934, the Rules made thereunder and to the conditions of the license. The condition of the license prescribed in detail as to the manner in which the storage-shed is to be constructed, and where it should be situated. It further lays down that adequate precaution shall he taken at all times for the prevention of accident by fire or explosion. Then there are provisions for allowing access to Inspectors or Sampling Officer appointed by the licensing authority. In May, 1952 the Corporation of Calcutta demanded license fees from the petitioner company for the year 1950–1951 for storage of petroleum at Paharpur and Garden Reach. The petitioner company made an application under Article 226 of the Constitution challenging the legality of such demand. This was numbered as Civil Rule No. 1425 of 1953. This Rule having come up for hearing before me on 24-6-1958, was made absolute on the preliminary point, namely, that the license fee was being demanded for a period during which no license-fee had been fixed. The other constitutional points taken in the said application were left open. On 23-12-1958 the respondent No. 1, the Director, West Bengal Fire Services, wrote a letter to the petitioner company, requesting it to apply for licenses under the West Bengal Fire Services Act, 1950 (West Bengal Act XVIII of 1950) for the storage of petroleum and petroleum products above 20 gallons and for kerosene oil above 40 gallons, a copy thereof is annexed to the petition and marked with the letter “A”.

3. The West Bengal Fire Services Act, 1950 (hereinafter referred to as the “Fire Services Act”) was passed on 30-3-1950 and came into force on 18-4-1950 inter aha in Calcutta, Garden Reach and Budge Budge. The preamble to the Act states that it is an Act to provide for the maintenance of a lire brigade, for the licensing of warehouses and for certain other matters. Under S. 3 of this Act, it is provided that the State Government shall maintain a fire brigade for services in the local areas in which this Act was in force. Section 4 confers powers on the State Government to do various acts and pass orders in respect of a fire-brigade constituted under the Act, e.g for furnishing the same with fire-fighting appliances, building or providing stations, training members of the fire brigade, and for other purposes. The word, “warehouse” has been defined under the said Act to mean any building or place used, whether temporarily, or permanently for the storing of certain articles mentioned in sub-section (2) of S. 2, which mentions specifically certain articles and gives power to the State Government to add to the list by notification in the Official Gazette. By notification dated 27-10-1950 petroleum products and kerosene were added to the list. Under Section 12 of the Fire Services Act it has been provided that no building or place shall be used as a warehouse unless the owner or occupier thereof shall have previously obtained under this Act, a license for such use from the Collector. The word “collector” has been defined to mean, in relation to Calcutta, the Collector of Stamp Revenue and in relation to any other local area, the Collector of the district within which the local area is comprised. Section 13 lays down thaf no license to use any building or place as a warehouse shall be granted unless such building or place conforms to such conditions as may be prescribed by Rules. Section 14 lays down the manner in which such licenses are to be taken out in respect of a building or place already used as a warehouse.

4. Before I proceed to enumerate the precise point of dispute that has arisen in this case, it will be necessary to consider certain items in the 7th Schedule of the Constitution. Item 53 in List I (Union List) is as follows:

“53. The regulation and development of oil fields and mineral oil resources; petroleum and petroleum products; other liquids and substances declared by Parliament by law to be dangerously inflammable”.

5. The promulgation of a law like the Petroleum Act would come under this item. It would next be necessary to consider items 5 and 6 in List II (State List) which are as follows:

“5. Local Government, that is to say, the constitution and powers of a Municipal Corporation, Improvement Trust, District Boards, Mining Settlement Authorities and other local authorities for the purpose of local self-government or village administration.

6. Public health and sanitation; hospitals and dispensaries”.

6. It has to be considered whether the Fire Services Act can be said to come under either of these two headings. Assuming however that it does, the point that has been raised is as follows: It is argued that the Petroleum Act is a Central Act and it has laid down conditions under which petroleum etc., can be stored. It has prescribed the manner in which the storage should be done and provides for the issue of a license. Where a license has been issued under the said Act, it is implied that the licensee is entitled to store petroleum etc., provided he conforms to the provisions of the said Act, the Rules made thereunder and the conditions of the license. As stated above, the petitioner company has taken out licenses under the said Act, and there is no question that it is complying with all the provisions of the said Act, the Rules made thereunder and the conditions of the licenses prescribed under the Rules. Now the authorities under the Fire Services Act, which is a State Act, come and say that a license must be taken out under the said Act, and until that is done the petitioner would not be permitted to store petroleum etc. in a warehouse. The Fire Services Act and the license to be issued thereunder, also prescribe conditions for storage. It is argued that the two Acts cannot be in the same field together. It is said that there being a Central Act already in existence, the promulgation of the Fire Services Act, in so far as it covers the same field as the Petroleum Act, is invalid by reason of Article 254 of the Constitution. The relevant provision of Article 254 is as follows:

“254(1) 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 is competent to enact…..then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State……………shall prevail and the law made by the Legislature of a State shall, to the extent of the repugnancy be void”.

7. We are not concerned with clause (2), which deals with matters enumerated in the concurrent list Mr. Meyer appearing on behalf of the petitioner company argues that the State law is invalid for two reasons. The first is that it is hit by the principle of repugnancy, and secondly, that it is hit by the “occupied field” theory. In other words, it is said that the provisions in the said Act regarding the taking out of a license in respect of petroleum etc., is repugnant to the provisions for taking out the license under the Petroleum Act and therefore, the provisions in the Fire Services Act should be held to be void. Secondly, it is said that even assuming that the said Act can be supported by the “pith and substance” theory, then it is equally liable to be excluded because there is already a Central Act in the field which is therefore, fully occupied. The first thing to be considered before we proceed further is as to whether the Fire Services Act comes within items 5 and 6 of the State List in the 7th Schedule of the Constitution. The learned Advocate General appearing on behalf of the respondents has argued that it comes under Item 5 and also under Item 6. Item 5 speaks about “local Government” and there are several illustrations given, for example, Municipal Corporation, Improvement Trust, District Boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. It will be remembered that under the Fire Services Act, the State Government has the duty to maintain a fire brigade for services in the local areas in which the Act is in force. Thus, it is a limb of governmental administration, and the “fire brigade” is a body constituted under the Act. Various provisions have been incorporated in the Act for issuing licenses. Thus no fire-works can be sold within the local areas in which the Act is in force without a license from the Collector. No person can let off rockets or send up fire-balloons without a license from the Collector. No building or place can be used as a warehouse or as a workshop without a similar license to be issued by the Collector. No temporary structures or pandals made of certain inflammable materials can be constructed without the permission of the Director of Fire Services. Violations of the provisions of the Act are punishable with fine which may extend to as much as a hundred rupees per day. Under Section 23 of the Fire Services Act, the State Government may order that the powers, duties and functions of the Collector under the Act shall be exercised and performed by the Corporation of Calcutta through its Executive Officer or the Commissioner, or by a Municipality through its Chairman. What is meant by the words “local government” is not easy to define. Hart in his “Introduction to Law of Local Government and Administration” states that the primary function of the State are two: the protection of its membeis from external aggression and the maintenance of internal peace and security. The first function leads to the up-keep of military forces and to the practice of diplomacy. Both these activities do not concern the local government since their direction is kept rigidly in the hands of the Central Government. The maintenance of internal security, however, though in its simplest form it is strictly confined to the provision of codes of law and the Executive Officers charged with carrying out the decision, cannot ultimately be confined to such narrow limits. Law courts may make necessary the use of some form of police, and police protection needs such aids as street-lighting. As population crowds into towns, new dangers are introduced threatening internal security. Sanitation has become a problem and legislation designed to promote public health must be included within the limits of State action. With the growth of these essential services, the State must necessarily promote other services which individual enterprises are unwilling or unable to produce. Instances of such services make a long list. We might include therein the maintenance of roads and bridges, relief of destitution, postal services, education, pension and insurance. Hart continues to state as follows:

“It might be thought that local government could be easily defined; but this is not the case indeed a field of local government cannot be determined by a theoretical consideration of the type of services it should include. Rather it must be defined by reference to the organs through which it is administered. From this point of view, it may be said that local government consists of those functions which are carried on by local authorities.”

8. The words “local authority” is also not easy to define. It will be remembered that in England there is no federation of States. The duty of providing for fire services is usually laid upon county or borough councils. If, however, they fail to perform their duties, their functions might be transferred to the Fire Services Board. In India, the duty falls on the State Government and the State Legislature has promulgated the Fire Services Act, under which it is the duty of the State Government to establish fire brigades in the local areas in which the Act is in force. As I have stated, the Act provides for the appointment of statutory officers, as also for a statutory body known as the “Fire Brigade”. Provision has been made for the raising of revenue for defraying its expenses by charging license fees. The powers of administration under the Act may be vested on Municipalities and the Corporation of Calcutta. The words “local authority” has been defined in the General Clauses Act. Under sub-section (23) of Section 3 of the Bengal General Clauses Act, “local authority” shall mean a municipal committee, District Board, body of Port Commissioners or other authority legally entitled to, or entrusted by the Government with, control or management of a municipal or local fund. So far as the Fire Services Act is concerned, license fees are payable either to the Collector or to the Director. For example, where the members of a the brigade are sent beyond the limits of any local area, fees are payable to the Director under Section 4A of the Fire Services Act. Under S. 23, the duty of realising fees may be vested in the Corporation of Calcutta or municipalities. In each case, the fund raised must be entrusted to or administered in the first instance by the authority concerned, namely the Collector, Director and/or municipality or Corporation, who realise the same and then pay it over to the State Government. I think that it would not be inappropriate to say that money is entrusted to and passes through, the hands of a local authority. I think it can fairly be said that the subject is covered by item 5. If however it does not come under item 5, I have no doubt that it comes under item 6, namely “public health and sanitation”. The providing of fire services has always been considered to be a part of the administration of public health. Lumley in his “Public Health” Vol. IV 11th Ed. page 4458 points out how the provision as to fire services formed a part of the Public Health Act, 1875 of England. In Halsbury's Laws of England, Ed. 2, Vol. 26, page 401, two instances are given of fire services under the Public Health Act of 1875 as well as of 1925. The subject “protection against fire” is under the heading “public health and local administration”. It is not difficult to connect fire services with public health. Protection against fire is intended to ensure the prevention of the occurrence of fires and the loss of life and injury caused thereby. Thus, it is an essential feature of public health to make provision for fire brigades etc., and this is precisely what is effected by the Fire Services Act. To my mind, the matter certainly comes within item 6 in List II.

9. Proceeding, therefore, on the footing that the Fire Services Act is a State Act and that the Petroleum Act is a Central Act, we have now to deal with the question of repugnancy and also to see the results of applying the ‘occupied field’ theory. In this respect, my task has been lightened because of a decision of the Appeal Court, presided over by Chakravartti, C.J, Bimal Chandra Paul v. Chairman Tamluk Municipality (unreported judgment D/- 24-7-1958). The facts in that case were as follows: The appellant was a dealer in kerosene, and stocked substantial quantities of the substance for the purpose of his trade. For the year 1953–1954 he took out a license under the Petroleum Act, in Form ‘J’. Schedule I of the Petroleum Rules. The Tamluk Municipality, however, insisted that he must take out license under the Bengal Municipal Act and as he did not comply with the requisition of the Municipality, a complaint was filed against him before the Sub-Divisional Magistrate, Tamluk, under Section 500 of the Bengal Municipal Act, read with S. 370(1)(xi). In an application under Article 226, it was contended that the provisions of the Bengal Municipal Act, in so far as it insists upon the taking out of a license for the storage of kerosene, was repugnant to the Central Act, namely, the Petroleum Act. The very same argument which has been made here, based on Article 254 of the Constitution, was advanced in that case. Chakravartti, C.J said as follows:

“In my opinion, there are several answers to this argument but it appears to me that it is not even necessary to examine the question of the alleged repugnancy at all, because Article 254(1), if I may say so, is repelled from the very threshold. The Article, as I have already pointed out, falls into two parts and we are concerned here only with the first and perhaps the more difficult one. That part contemplates “a law made by the Legislature of a State” on the one hand and “a law made by Parliament” on the other. There is in the present case, in my view, neither a law made by Legislature of a State, nor a law made by Parliament. A “State” as we know it to-day, is a creature of the Constitution and the Legislature of a State, as contemplated by Article 254, must be a State Legislature, created under the provisions of the Constitution and functioning since its commencement. The Bengal Municipal Act, being an Act of 1932, is not an Act of “the legislature of a State” within the meaning of Article 254(1)”.

10. In the present case, the Fire Services Act is a law made by the Legislature of a State, but the Petroleum Act is not a law made by Parliament or act existing Act with respect to one of the matters enumerated in the concurrent list. Therefore, Article 254(1) does not introduce any repugnancy. Next, the learned Chief Justice proceeds to examine the applicability of section 107(1) of the Government of India Act, 1935. The learned Chief Justice says as follows:

“If Article 254 of the Constitution be out of the way, we must next consider whether the appellant can substantiate the same contention by reference to section 107(1) of the Government of India Act, 1935. In my view, he is confronted with the same difficulty. I have already read the terms of paragraph 1 of the section and have pointed out that in the case or Subrahmanyan Chettiar v. Muttuswarni Goundan, 45 Cal WNFR 1 : (AIR 1941 FC 47) two of the judges-of the Federal Court on a Bench of three held that the repugnancy contemplated by the section was repugnancy with a Central Act passed alter the Act of 1935 had come into force. Similarly, the provincial law contemplated by the section was a law passed after the commencement of the Constitution Act. The Bengal Municipal Act being an Act of 1932 and the Petroleum Act being an Act of 1934, both of them are Acts passed before the Government of India Act of 1935 had come into force and that being so, the appellant must be in the same difficulty with regard to section 107(1) of the Government of India Act as he is with regard to Article 254(1) of the Constitution. It is true that the Petroleum Act came into force on the 30th of March, 1937, but even that circumstance can be of no assistance to the appellant, because what section 107(1) contemplates is not when a law came into force, but when a law was made & the agency by which it was made & secondly, because even the 30th of March, 1937, was one day earlier than the day on which the Act of 1935 came into force.”

11. In the present case, although the Fire Services Act is a State Act, still the Petroleum Act is an Act which was promulgated even before the Constitution Act of 1935 came into force and therefore, the provisions of S. 107(1) of the said Act would not apply and therefore, would not create a repugnancy. In my opinion, therefore, the argument of repugnancy cannot be accepted. Three situations may be contemplated in cases like this. The learned Chief Justice said as follows:

“Three situations may, therefore, arise. A law made by a State Legislature may be, in pith and substance, a law made on a State subject, with certain provisions impinging incidentally on a Union subject, but on such Union subject there may not be 1 any existing parliamentary law at all. In such a case, there is nothing with which the State law could be repugnant and, therefore, no question of repugnancy arises. In a second case, there may be some Union legislation already made on the subject on which the State law impinges, but if the provisions of the two laws on that subject are such that they are not mutually inconsistent and both can be obeyed simultaneously and if no intention on the part of the Union Legislature to occupy the whole field of the subject is apparent, then again the Provincial law will obviously be valid, because there is no repugnancy. The field, though occupied by a Central law, is not occupied wholly. The difficulty arises in a third case where the impingement is on a Central subject on which there is some existing Union legislation and the provisions of the two laws are such that they conflict with each other, so that there are both a trespass and a clash. The question of repugnancy clearly arises in such a case and the Union legislation with which the State law conflicts is clearly ‘a law made by Parliament which Parliament is competent to enact’….”

12. The rule of “pith and substance” has been explained by Sir Maurice Gwyer, C.J, in 1940 FCR 188 : (AIR 1941 FC 47), in the following words:

“It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind observations to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby impugned statute is examined to ascertain its “pith and substance” or its “true nature and character”, for the purpose of determining whether it is a legislation with respect to matters in this list or in that”.

13. One of the most prominent cases in this field is the decision of the Judicial Committee in Prafulla Kumar v. Bank of Commerce Ltd., Khulna, 74 Ind App 23 : (AIR 1947 PC 60). The question there was whether the Bengal Money Lenders Act, in so far as it dealt with loans on promissory notes, was repugnant to the Negotiable Instruments Act. The Negotiable Instruments Act is a Central Act, and certainly deals with promissory notes, which is a form of negotiable instrument. The Bengal Money Lenders Act, 1940 provided that notwithstanding anything contained in any law for the time being in force, or in any agreement, no borrower shall be liable to pay after the commencement of the said Act, more than a limited sum in respect of principal and interest, or more than a certain percentage of the sum advanced by way of interest. It was argued that this provision affected the law of “promissory notes” and “Banking”, subject matters reserved for the Federal Legislature under entries 28 and 38 respectively of List I of the Schedule annexed to the Government of India Act, 1935. The Calcutta High Court held that the Act was intra vires. The Federal Court disagreed and held that the provisions affecting loans on promissory notes, constituted a direct encroachment on the subject mentioned in item 28 of Central list viz., promissory notes, and consequently was ultra vires the Constitution Act. The Privy Council held that the view of the Federal Court was not correct because, the Bengal Money Lenders Act was in pith and substance a law on “money lending and money lenders”, which was exclusively a Provincial subject. If the subject matter of the Act thus lay entirely within the special Jurisdiction of the Provincial Legislature, no question of any repugnancy could possibly arise, and section 107(1) of the Government of India Act had no application. Before the Judicial Committee it was argued that in India, under the Constitution Act, there were three and not two lists as are in vogue in Canada and Australia. It was argued that these lists have a definite order of priority attributed to them, so that anything contained in List I is reserved solely for the Federal Legislature, and however incidentally it may be touched on by any Act of the Provincial Legislature, that Act is ultra vires, as a whole or, at any rate, to the extent to which it affects any entry in the Federal list. It was argued that only in matters specifically mentioned in the list II has the Province complete jurisdiction, although so long as any item in the concurrent list has not been dealt with, by the Federal Legislature the Provincial Legislature can legislate upon such an item. This argument was not accepted by the Judicial Committee Lord Porter said as follows:

“No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars, and the existence of the concurrent list has made it easier to distinguish between those matters which are essential in determining to which, list a particular provision should be attributed and those which are merely incidental. But the overlapping of subject matter is not avoided by substituting 3 lists for 2, or even by arranging for a hierarchy of jurisdiction. Subjects must still overlap, and where they do the question must be asked what input and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these-questions could not be asked, much beneficient legislation would be stifled at birth, and many of the-subjects entrusted to Provincial Legislation could, never effectively be dealt with.

Thirdly the extent of the invasion by the Province into subjects enumerated in the Federal List has to be considered. 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, but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance however into Federal territory as to show that its true nature is not concerned with Provincial matter, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money lending but promissory notes or banking? Once that question is determined the Act falls on one or other side of the line and can be? seen as valid or invalid according to its true consent. This view placed the precedent accorded to the three lists in its proper perspective.”

14. Let us, therefore see as to the pith and substance of the two legislations which are said to conflict with each other. The Petroleum Act, 1934 came into operation prior to the Constitution of India and the Constitution Act of 1935. However considering it from the point of view of the Constitution Acts, we find that the Item 53 of List I in the 7th Schedule of the Constitution of India speaks of the regulation and development of oil fields and mineral oil resources; petroleum and petroleum products as also other liquids and substances declared by Parliament by law to be dangerously inflammable. Therefore, the pith and substance, so far as we are concerned is the regulation and development of mineral oils and petroleum and petroleum products. In the Constitution Act, 1935, the Federal Item was-Item 32 which dealt with petroleum and other liquids and substances declared by Federal Law to be dangerously inflammable so far as regards possession, storage and transport were concerned. The two entries are not identical. While the entry in the Constitution Act of 1935 expressly confines itself to the possession, storage and transport of inflammable substances, Item 53 of the Constitution speaks; about “regulation and development”. Thus, the emphasis is no longer on possession or storage although regulation of mineral oils and petroleum and petroleum products might incidentally touch the question of storage. Coming now to the State List, I have already said that it might come either under Item 5, or item 6. Neither of these items deals with regulation or development of mineral oils or petroleum or petroleum products, nor are they the principal object of legislation. So far as Item 5 is concerned, It merely deals with the Constitution and power of local authorities. In the Appeal Court decision of Chakravartti, C.J, mentioned above, the conflict was between the Petroleum Act and the Bengal Municipal Act. It was held that the provision of the Bengal Municipal Act were not invalid in so far as it provided for the issue of a license for storing petroleum or kerosene. Coming to Item 6, I have held that the impugned legislation comes within the heading of public health and sanitation. Corning now to the Fire Services Act, we find that it is an Act to provide for the maintenance of a fire brigade and the licensing of warehouses where inflammable materials are stored. The object is not to regulate or develop mineral oils or petroleum or petroleum products. So far as the State Government is concerned, it is not interested in the regulation and development of mineral oils or petroleum or petroleum products as such. The object is the prevention of fires which endanger human life and human health. The object of this legislation, that is to say, its pith and substance, is to legislate for the provision of fire-fighting services so that there should be an organised machinery not only for putting down fires but to prevent conflagrations taking place. It is with this object that the Fire Services Act seeks to control storage of petroleum. It will be remembered that the word “warehouse” as originally defined in the Act contained no reference to petroleum or petroleum products at all but gave a long list of inflammable materials like jute, gunny bags, cotton, hemp, pitch, tar, straw, hay etc. It gave power to Government to add to the list. It is in exercise of this power that ‘petroleum’ was added to the list so that a building or place used for storage of petroleum became a “warehouse” as defined in the Act. Thus, the primary object of the State Act is not regulation or development of minerals oils or petroleum or petroleum products as such, but the control of fires endangering human life. The emphasis is laid on the building or place used as a warehouse, where inflammable materials are stored. Thus, while in the Central Act the emphasis is on the inflammable article itself, the emphasis in the State Act is on the building or place in which it is housed. It is true that in the license given under the Central Act, all kinds of restrictions are introduced as regards the manner in which the storage of petroleum etc. can be made. It is argued that after all this is exactly what the Fire Services Act also does. That however is not the test which has been prescribed. I have already mentioned above the decision of the Judicial Committee in which it has been laid down that the extent of infringement is not material. The question is whether the State Act is in pith and substance an Act upon a State subject. If it is, the extent of its invasion into the Union List is immaterial, unless it can be said that in fact, it is not a legislation upon an item in the State list at all, but in reality it is a legislation upon an item in the Union list. Thus, the next question to be asked here would be as to whether the Fire Services Act was promulgated with an intention of making provisions for the regulation and development of mineral oils or of petroleum or petroleum products? I do not think that it is possible to give an answer in the affirmative. That clearly is not the object of the Fire Services Act. This, in fact, is an answer also to the ‘occupied’ field theory. Even if there is a legislation dealing incidentally with a subject in the State list, a piece of State leeislation cannot become void, if in pith and substance, it relates to a matter in the State list. In other words, although in such a case, there may be a certain degree of overlapping, that does not make the State legislation invalid. Mr. Meyer has cited before me a case which had also been strongly relied upon in the Appeal Court decision of Chakravartti, C.J It is a decision of the Privy Council in an appeal from Australia, Thomas O'Sullivan v. Noarlunga Meat Ltd., 1957 AC 1. On facts, this case presents a surprisingly close parallel to the case before me. Under the Commonwealth Commerce (Meat Export) Regulations of Australia, export of meat was prohibited unless the premises at which the animals concerned were slaughtered had been registered, that is to say, no one was allowed to slaughter stock for export except in a slaughter house registered under the Regulations. The respondent company had gotis slaughter house registered under the Commonwealth Regulations and therefore, so far as the Commonwealth Law was concerned, it had acquired a right to slaughter stock for export in the premises registered. The State passed a law, and in Section 52A or the ‘Metropolitan and Export Abattoirs Act, 1936–52’ provided that no person shall, in any part of the State outside the Metropolitan Abattoirs Area, use any premises for the purpose of slaughtering stock without a license from the Minister of Agriculture authorising him to do so. The respondent company contended that the State law was repugnant to the Commonwealth Regulations and was void under S. 109 of the Australian Constitution which provided that when a law of a State was inconsistent with the law of the Commonwealth, the latter should prevail and the former should, to the extent of the inconsistency, be invalid. This section was thus the Australian counterpart of section 107(1) of the Government of India Act, 1935 and Article 254 of the Constitution of India. The Privy Council held that the Commonwealth Regulations evinced a clear intention to occupy the whole field of licensing the premises for the purpose of slaughtering stock for export and that therefore, the entry of a State law on the same field was clearly inconsistent and unauthorised and consequently void. Mr. Meyer argues that the facts of the Privy Council decision and the present case are indistinguishable, as it was similarly argued in the case before Chakravartti, C.J There can be no doubt that the facts are very similar. The question is, whether the Australian case can be distinguished from the instant case before me. In the Australian case, the subject matter of the Commonwealth Regulations was nothing more or less than to control the use of premises for the purpose of slaughtering stock made for export. This was also the avowed object of the State Act. In the State Act the control was in respect of premises used for the purpose, not of slaughtering stock generally but only of slaughtering stock meant for export. The field of operation if the two laws was, therefore, identical. The learned Chief Justice, in the Appeal Court decision mentioned above, held that there was another principle enunciated in the Privy Council decision which would save the State Act. The general principles in such a case may be stated in the words of Dixon, J. (as he then was) in Ex parte McLean, (1930) 43 CLR 472, in these words:

“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. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter”.

15. The above is the general proposition. To that, however, there is an exception which the Privy Council laid down, quoting from the observation of Dixon, J., in (1930) 43 CLR 472 (supra):

“If it appeared that the Federal Law was intended to be supplementary to or cumulative upon State Law, then no inconsistency would be exhibited in imposing the same duty or in inflicting different penalties. The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience”.

16. In applying the above tests with the exception mentioned above, to the facts of the case before him, the learned Chief Justice referred to Section 31 of the Petroleum Act which runs as follows:

“31. Power to limit powers of local authorities over petroleum. — Where any enactment confers powers upon any local authority in respect of the transport or storage of petroleum, the Central Government, may by notification in the official Gazette—

(a) limit the operation of such enactment, or

(b) restrict the exercise of such powers, in any manner it deems fit”.

17. In exercise of this power, the Central Government has restricted the exercise of powers conferred by the Bengal Village Self Government Act, 1919 (Bengal Act V of 1919) in respect of transport or storage of petroleum other than petroleum with a flashing point not below 200. F. It has also limited the operation of similar enactments in various Municipal Acts, Local Boards Acts and Town Areas Acts mentioned in Notification No. M-826 dated 16-6-37 as amended on 23-5-38. The learned Chief Justice said that S. 31 suggested an awareness of the facts that there were various Acts passed by State Legislature which conferred power on local authorities in respect of transport or the storage of petroleum including the power to grant a license for such storage. With knowledge of such Acts, S. 31 does not make any provision for excluding the operation of those Acts, but on the other hand, merely leaves it to the Central Government to restrict the powers of the local authorities or the operation of the enactment in such a manner as it may deem fit. The learned Chief Justice proceeds to say as follows:

“The effect, to my mind, is that the Central Act was recognising the existence of State Acts, conferring powers on local authorities to grant a license for the transport or storage of petroleum and it let those powers subsist, subject to curtailment, if any, by the Central Government. When a Central Act is expressed in those terms, it can, by no means, be said that it evinces an intention to occupy the whole field or that it expresses by its enactment completely, exhaustively or exclusively that what it itself is laying down shall be the whole law on the subject concerned. Such a case, in my view, comes clearly under the exception laid down by the Australian High Court and the Privy Council which I have already read. The Central Act in such a case is clearly intended to be only supplementary to or cumulative upon the State law”.

18. Mr. Meyer has argued that so far as the present case is concerned Section 31 of the Petroleum Act has no application. He argues that the exception engrafted related to a State enactment conferring power upon a local authority in respect of storage of petroleum. He says that the authorities under the Fire Services Act cannot be called local authorities. This is an aspect which I have already discussed. I have pointed out the definition of ‘local authority’ in the Bengal General Clauses Act. That definition makes it incumbent that the authority concerned must be entrusted with or be in control or management of a local fund. The question is whether the fire services authorities are entrusted with in control or management of a local fund. Under the Fire Services Act the State Government has to maintain a fire brigade. From that point of view I do not see why the State itself should not be considered as a ‘local Government’ or local Authority. In any event, the authorities mentioned in the Fire Services Act may be described as local authorities. The Fire Services Act does not in the first instance come into force anywhere except in such ‘local areas’ as the State Government may direct. In respect of each local area a fire brigade is to be maintained. The Collector in that area, as also the Director of fire services in that area, levy the fees and issue licenses. Thus, there must necessarily be a local fund in the first instance, and there certainly is, when a Municipality or a Corporation is entrusted with the duties under the Act. Ultimately, money is made over to the State Government and merges with the general revenue. In my opinion, a local fire brigade with its local Director and the Collector of the area discharging his functions under the Act or the Director may be described as a ‘local authority’ within the meaning of that expression as used in the General Clauses Act. Summing up the above proposition, I come to the following conclusion—

1) The Petroleum Act, 1934 is neither an Act passed by the Central Legislature nor by Parliament and as such there cannot be any question of its repugnancy with the Fire Services Act of 1950 which is a State Act, either under Article 254(1) of the Constitution or under section 107(1) of the Government of India Act, 1935.

2) That the Fire Services Act is in pith and substance an Act which comes within the subject matter of items 5 and 6, certainly item 6 in list II, 7th Schedule of the Constitution namely, the State List. The Petroleum Act, 1934, if it comes under the Union List can only come under item 53 and the subject matter thereof is not identical with items 5 and 6 in the State List. Thus even if the State Act makes an incidental encroachment upon the Central Act it is not rendered invalid thereby. The subject matters of the two Acts are not the same, although some of the provisions may overlap.

3) Even if the provisions overlap, there is no repugnancy, between the two Acts, because by its own premises the Petroleum Act, 1934 is not meant to be exclusive but is supplementary to, and contemplates the existence of, State Acts relating to the storage of petroleum. Therefore, there is no repugnancy.

4) For the reasons given in clauses 2 and 3 above the argument of ‘occupied field’ also fails.

19. For the reasons aforesaid, I hold that the petitioner has not been able to establish that the provisions of the Fire Services Act, under which it as been called upon to take out a license, are invalid and therefore, no grounds have been made out for interference by this Court. The application is accordingly dismissed. The Rule is discharged. Interim orders, if any are vacated. There will be no order as to costs. The operation of this order is stayed until a fortnight after the re-opening.

LC/D.H.Z

20. Application dismissed.