1. By notification no. Sro. 291/1967 issued as part of g. O. Ms. 276/67/dd. Of the government of kerala, Development department dated 27th september 1967, Under sub - s. (2) of s. 3a of the kerala municipal corporations act, 30 of 1961 (referred to as the act), The kerala government extended the provisions of the act, Inter alia, To the area known. As wellington island, And appointed the first day of november 1967 as the day on which the provisions of the act would apply to the said area. Thereafter, The corporation of cochin resolved to levy property tax in respect of buildings in the newly added area willington island from 141969. The extension of the act to willington island and the levy of property tax in respect of the buildings situated in that area have been challenged in these writ petitions. Arguments were addressed by the three counsel appearing in three sets of o. Ps. Viz. (1) o. P. Nos. 1900,1901 and 1904 of 1970 and 4373 of 1971; (2) 0. P. Nos. 2387, 2406, 2432, 2433 and 2465 of 1969 and 0. P. Nos. 343 and 1001 of 1970; and (3) o. P. Nos. 1054,1903, 5102 of 1970 and o. P. 629 of 1971. No separate arguments were advanced by counsel in any of the other writ petitions.

2. The main contentions advanced were: that the extension of the act to willington island is without legislative competence, As the island is within the limits "a major port" governed by the major port trusts act of 1963 passed by parliament, And inconsistent with its provisions, And therefore the provisions of the act have to yield to the provisions of the central act; and that the property - tax, Though styled a 'tax' was in fact a 'fee', And as such the levy was invalid. In addition to these, Some argument was addressed that as a result of an agreement between the port and the corporation, The property - tax was being levied and collected in respect of the buildings of the port only on and from 1 - 4 - 1970 whereas in respect of buildings belonging to others the same was being done from 1 - 4 - 1969, And that this amounted to discrimination.

3. To predicate the absence of legislative competence, It was argued that a'port' is a'local authority', Within the meaning of s. 2 (31) of the central general clauses act, 1897 which is applicable also to interpret the provisions of the constitution by reason of art. 367 thereof. Being a'local authority', It was argued that under the provisions of the major port trusts act, The functions and the powers performed by the port are practically the same as those conferred on a municipal corporation under the act, And therefore in so far as the willington island is covered by the provisions of both the acts, In regard to the same subject - matter, The state act had to yield. Entry 27 of list i of the seventh schedule to the constitution reads:

"27. Ports declared by or under law made by parliament or existing law to be major ports, Including their delimitation, And the constitution and powers of port authorities therein."

and entry 5 of list ii, Under which the kerala municipal corporations act has been based, Reads:

"5. Local government, That is to say, The constitution and powers of municipal corporations, Improvement trusts, District boards, Mining settlement authorities and other local authorities for the purpose of local self government or village administration"

articles 245 and 246 of the constitution provide for distribution of legislative powers. Art. 246 (1) grants parliament the exclusive power to legislate in respect of all matters enumerated in list i; and to the legislature of a state, Exclusive power to legislate in respect of matters enumerated in list ii. In respect of matters in list iii, Both the parliament and the legislature of a state have power to enact laws, Subject to the paramount power of parliament. Art. 254 (i) of the constitution reads:

"254. Inconsistency between laws made by parliament and laws made by the legislatures of states: (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, Or to any provision of any existing law with respect to one of the matters enumerated in the concurrent list, 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, Or, As the case may be, The existing law, Shall prevail and the law made by the legislature of the state shall, To the extent of the repugnancy, Be void."

4. Our attention was drawn to the provisions of the major port trusts act and of the kerala municipal corporations act. In particular, The provisions of s. 3, 5, 29, 30, 35 (1), 36, 42, 46, 48, 49, 50, 53. 110 and 124 of the former were stressed before us. We do not wish to refer to these provisions in detail, Or even to summarise their gist or substance. We are quite unable to understand the major port trusts act or the provisions relied on, As dealing with or in any manner providing for, Municipal administration in respect of the area included in a major port, And comprising as far as cochin port is concerned of the willington island. Much the less do we see any clash between the provisions of the port trusts act, And the municipal corporations act. We repeatedly asked the three counsel in the three groups of o. Ps. To point out any section or provisions of the port trusts act, Which, According to them, Clashes with the provisions of the municipal corporations act. The only sections to which counsel would draw our attention, Were s. 29 (1) fa) and 35 (1). S. 29 (1) (a) reads:

"29. (1) as from the appointed day in relation to any port (a) all property, Assets and funds vested in the central government or, As the case may be, Any other authority for the purposes of the port immediately before such day, Shall vest in the board". X x x xx it was said this would clash with s. 210 of the municipal corporations act by which all public streets in the city not being reserved under the control of the central or state government with pavements, Stones etc., Shall vest in the corporation. It was contended that the effect of this latter provision was to divest the port trust of its ownership or right of property in public streets within the limits of the port (willington island) and to vest such ownership or property in the corporation. We cannot understand s. 210 of the corporation act as having any such effect. We entertain considerable doubt whether either s. 29 of the central act or s. 210 of the state act would vest a right of property in public roads and streets either in the port or in the corporation. Especially does it appear to be so, As there is a comprehensive provision in s. 3 of the kerala land conservancy act, 1957 which provides for all roads, Except those specifically exempted, Being the property of the government. The expression "vests" used in municipal statutes has received judicial interpretation, And it has been ruled that the scope and ambit of the term should be gathered from the context and the purpose of the statute, And that consistent with these, The vesting may only be for the purpose of administration for the benefit of the villagers or others, (vide the fruit and vegetable merchants union v. The delhi improvements trust (air. 1957 sc. 344). If this be the import and the significance of the term 'vests' occurring in the two statutes, Namely the port trusts act, And the municipal corporations act, We see no clash between the provisions of the two statutes if roads and public streets are vested in the port trust, For the limited purpose of administering the port as envisaged by the port trust act, And in the corporation for purpose of municipal administration.

5. S. 35 (1) of the major port trusts act empowers the port trust to execute such works within or without the limits of the port and provide such appliances as it may deem necessary or expedient. It was pointed out that under s. 212 (1) (c) of the municipal corporations act, The commissioner could under certain circumstances, Close any public street or part thereof and that this would run contrary to the powers conferred on the port under s. 35 (1), Which it was said, Would include a power to lay out roads within the port area for convenient transport of goods and passengers. Assuming that the port would have this power under s. 35 (1) of the central act, We see no likelihood of a clash with the provisions of s. 212, When the respective jurisdictions of the two acts are settled in the way in which we have expounded. We are therefore unable to see any repugnancy or conflict between the provisions of the major port trusts act and the municipal corporations act.

6. Although express provisions clothing the port trust with powers of municipal administration are absent in the central act, Counsel for the petitioners in the second group of writ petitions contended that these powers should be implied from the very concept of a major port as a 'local authority'. That a major port would pass as a 'local authority', Having regard to s. 2 (31) of the general clauses act and to the provisions of the major port trusts act, Was not disputed. Counsel in the second group of o. Ps. Drew our attention to the provisions in the madras district municipalities act, And the madras city municipal act, To satisfy us that the pre - constitution legislative practice was to regard the 'port' as a 'local authority', With powers of self government or local administration. As representative of the pattern of legislation so relied on, We may draw attention to the proviso to s. 93 (4) of the madras district municipalities act of 1920. The said proviso reads:

"nothing contained in this section shall be deemed to render a person who resides within the local limits of one local authority, And exercises his profession, Art or celling or transacts business or holds any appointment within the limits of any other local authority or authorities liable to profession tax for more than the higher of the tax leviable by any of the local authorities. In such a case the state government shall apportion the tax between the local authorities in such manner as they deem fit and the decision of the state government shall be final:

provided that where one of the local authorities concerned is a cantonment authority or the port authority of a major port, The decision of the state government shall be subject to the concurrence of the central government".

while it ss an easy step from the juxtaposition of the words in the proviso to conclude that the port authority of a major port is a'local authority', To go further and bold that it is also invested with all the powers of local self government or municipal administration, Appears to be a far cry. We need not therefore consider the further question as to how far a pre - constitution legislative practice, Can control the provisions of the constitution.

7. But it was contended by counsel for the petitioners that whether there be conflict between the act passed by the parliament and the act passed by the state or not, Once parliamentary legislation has "occupied" the "field" covered by entry 27 of list i, State legislation under entry 5 of list ii, Even if it "incidentally trenches" on the parliamentary legislation, Would be void. For this, Reliance was placed on the judgment of sulaiman j. In subramonian chettiar v. Muthuswamy gounder (1941 fed. C. 47). One of the questions debated therein was whether a law passed by the provincial legislature, Viz. The madras agriculturists debt relief act, Which provided for the sealing down of debts, Was repugnant to the provisions of the negotiable instruments act, Passed by the central legislature. Gwyer c. J. And varadachari j. Expressed no opinion on the question, As the same did not strictly arise, The negotiable instruments in question, Having passed into the stage of decrees of court. But sulaiman j. Discussed the position with respect to the doctrine of "incidental encroachment" and the theory of "the occupied field", And the canadian decisions bearing on these aspects. Certain observations made by the learned judge were strongly relied on by counsel for the petitioners. With respect, We do not think that the principle stated by sulaiman j. Would be of any avail to the petitioners in these cases. In that case, There was a clear entry as entry 28 of list i "cheques, Bills of exchange, Promissory notes and other instruments", To which the negotiable instruments act could be referred, And the "field" having been thus "occupied" by a pre - existing law, Any "incidental trenching" by the state legislature, It was said, Was liable to be struck down. In this case, We cannot understand entry 27 of list i as covering matters of local administration, And therefore the municipal corporations act made under entry s of list ii, Does not in our opinion, Even incidentally trench upon the major port trusts act. For this reason, It is unnecessary to consider how far sulaiman j. 's thesis has been sustained in the light of the subsequent decisions. We may notice that, Subsequent to the decision in subramonian chettiar's case (air. 1941 fed. C. 47) there is a great wealth of authority that conflict between parliamentary legislation and the state legislation is to be resolved of the doctrine of "pith and substance" rather than on theory of "incidental encroachment" and the "occupied field". We need not however elaborate on this aspect of the matter.

8. Counsel for the petitioners however stressed that sulaiman j. 's dictum has been approved by the supreme court in a recent decision in state of jammu & kashmir v. M. S. Farooqi & others (air. 1972 sc. 1738). The question in that case was whether the jammu & kashmir government servants prevention of corruption act, 1962 passed by the state legislature was repugnant to the provision!) of the all india service act 1951 and the all india services discipline and appeal rules, 1955 the act having been passed by parliament and the rules having been framed thereunder. Parliament could legislate under entry 70 of list i on all india services. On the other hand, It was contended that the state could legislate with respect to corruption of public officers of the state. It was held that there was a direct conflict between the central legislation and the rules framed thereunder, And the state act, And that art. 254 as then applicable to the state of jammu & kashmir, Was clear that the parliamentary legislation should prevail. It will be noted that the court was clearly of the view that the subject - matter of the legislation was within the province of both the parliament and the state legislature. Here, We find it impossible to say with respect to the two entries on which reliance has been placed, That the topic of municipal administration undoubtedly covered by entry 5 of list h, Also falls within the entry 27 of list i of the constitution. That apart, Sikri c. J. Who spoke for the court, Exhaustively surveyed the indian, Australian and canadian authorities dealing with repugnancy. In surveying the canadian authorities, The learned chief justice quoted sulaiman j. 's dictum in subramonian chetttar's case (air. 1941 fed. C. 47). In discussing the australian decisions, The learned chief justice noted that the privy council in o'sullivan's case (1957 appeal cases i) had approved the principle stated by dixon j. In exparte mc. Lean (1930 - 43 clr. 472). That principle was stated thus:

"the inconsistency does not he in the mere co existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, Completely, Exhaustively, Or exclusively, What shall be the law governing the particular conduct or matter to which its attention is directed, 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"

we are unable to understand the decision of the supreme court as lending any countenance to the arguments of counsel for the petitioners in these cases.

9. The decision in state of orissa v. Tulloch (air. 1964 sc. 1284) is again unhelpful to the petitioners. There, The question was whether the orissa mining areas development fund act 1952 continued to have any operation after the mines and minerals development act 1957 was passed by the central legislature, And whether the fees leviable under the orissa act could continue to be levied from the mine owners under the said act. The central legislation was under entry 54 of list i, And the state legislation under entry 23 of list ii of the seventh schedule. Under the former, The parliament has power to pass a law relating to regulation of mines and mineral developments to the extent to which such regulation and developments under the control of the union is declared by parliament to be expedient in public interest. Under the latter, The state legislature's power regarding regulation of mines and minerals development, Is expressly made "subject to the provisions of list i, With respect to regulation and development under the control of the union". It was held that as the parliamentary legislation contained the requisite declaration by union parliament under entry 54 of list i, And covered the same field as the state act 1952, The state legislature would stand denuded or deprived of its powers to the extent of the declaration by parliament. One other argument advanced was that s. 18 of the central act only enabled parliament to "take steps" for conserving mines and minerals and till such steps were taken by framing rules there could be no repugnancy. This argument was rejected on the strength of the earlier ruling in hingri rampur coat co. 's case (air. 1961 sc. 459). The court then proceeded to observe:

"but even if the matter was res integra, The argument cannot be accepted. Repugnancy arises when two enactments both within the competence of the two legislatures collide and when the constitution expressly or by necessary implication provides that the enactment of one legislature has superiority over the other than to the extent of the repugnancy the one supersedes the other. But two enactments may be repugnant to each other even though obedience to each of them is possible without disobeying the other. The test of two legislations containing contradictory provisions is not, However, The only criterion of repugnancy, For if a competent legislature with a superior efficacy expressly or impliedly evinces by its legislation an intention to cover the whole field, The enactments of the other legislature whether passed before or after would be overborne on the ground of repugnance. Where such is the position, The inconsistency is demonstrated not by a detailed comparison of provisions of the two statutes but by the mere existence of the two pieces of legislation."

understood in the context of the argument that was rejected, The above passage ss of no assistance to the petitioners. In the light of the authorities placed before us, We are unable to hold that there is any inconsistency or repugnancy between the major port trusts act and the kerala municipal corporations

act.

10. It was then contended that the building - tax sought to be exacted from the petitioners is strictly a fee, Though designated a tax. Attention was called to s. 98 of the act which authorises the levy of profession tax, And to s. 101, Which is as follows:

"101. Description and class of property tax:

(1) if the council by a resolution determines that a property tax shall be levied such tax shall be levied on all buildings and lands within the city save those exempted by or under this act or any other law. The property tax may comprise of

(a) a tax for general purposes;

(b) a scavenging tax to provide for expenses connected with the removal of rubbish fifth or the carcasses of animals from private premises;

(c) a water and drainage tax for the purpose of defraying the expenses connected with the water and drainage systems of the city, Existing or to be provided for;

(d) a lighting tax for the purpose of defraying the expenses connected with the lighting of the city:

provided that where the water and drainage is levied the council shall declare what proportion of the tax is levied in respect of water works and the remainder shall be deemed to be levied in respect of drainage works and the proportion so declared shall also be specified in the notice published under sub - s. (2) of s. 100". We were next referred to s. 103, Clause. 2 to 5 of which read:

103 (2) the water and drainage tax seal not be levied on any land used exclusively for agricultural purposes and not deriving any benefit from the water or drainage works on account of which the tax is imposed.

(3) the council may, With the previous sanction of the government, Exempt any particular part of the city from the payment of the whole or a portion of the water and drainage tax or of the lighting tax on the ground that such area is not deriving full benefit from the water supply and drainage or from the lighting system.

(4) the council may exempt any building or land from the whole or any portion of the scavenging tax if it is satisfied that the owner or occupier has made efficient and satisfactory arrangements for the daily removal therefrom of rubbish, Filth and carcasses of animals.

(5) notwithstanding anything contained in this act or any other law, In the case of properties exempted from property tax under sub s. (1) the council shall be entitled to claim cost of services generally covered by the services taxes:

provided that the council may by resolution waive the claim for cost of services in respect of institutions run for charitable purposes".

along with these, The provisions of s. 138 and 139, And schedules ii and iii were stressed. S. 138 merely incorporates the provisions of schedule ii into chapter v of the act; and s. 139 enacts that all monies received by the corporation shall constitute the 'municipal fund' to be applied and disposed of in accordance with the provisions of the act. R. 41 of part vii of schedule ii requires the commissioner to keep separate accounts of all monies received and expended for water - tax, Drainage tax, Lighting tax and scavenging tax. In the light of these, The contention advanced was that the property - tax was made up, At least of elements, 'earmarked for certain specific purposes or the performance of services or the conferment of benefits. Consistent with this aspect, It was said, Were the provisions which empower the corporation, In conceivable cases, To remit the tax or not to levy the same on the ground that no benefits had been conferred or services rendered. These, It was said, Are the indicia of a fee and not a tax. The nature of impost as a fee was further sought to be inferred from the destination of the proceeds to a special municipal fund, And not to the consolidated fund under art. 266 of the constitution, In which all taxes were to merge. We are not impressed by these arguments. The fact that certain elements or ingredients of the tax such as scavenging tax, Or water - tax or lighting tax are stated to have been levied for meeting certain specific expenses, Does not destroy the real nature and the character of the levy, Which, We are satisfied, Is a tax and not a fee. Counsel for the petitioner relied on hinghri rampur coal company's case (air. 1961 sc. 459) where it is stated (vide para. 9) that a tax invariably goes into the consolidated fund. But the converse proposition, That what does not so go, Can never be a tax, Does not follow. In jaora sugar mills (p.) ltd. V. State of madhya pradesh (air. 1966 sc. 416), Adverting to the argument that the cess levied which was held to be a tax had not been transferred to the consolidated fund of india and could not be regarded as a tax, The supreme court observed:

"even so, It is difficult to understand bow the act can be said to be invalid because the cesses recovered under it are not dealt with in the manner provided by the constitution. The validity of the act must be judged in the light of the legislative competence of the legislature which passes the act and may have to be examined in certain cases by reference to the question as two whether fundamental rights of citizens have been improperly contravened, Or other considerations which may relevant in that behalf. Normally, It would be inappropriate and indeed illegitimate to hold as enquiry into the manner in which the funds raised by an act would be dealt with when the court is considering the question about the validity of the act itself"

in raja oil mills v. Union of india (1968 klr. 355) the validity of the produce cess act 1966 was challenged on the ground that the levy was a fee for defraying certain specific purposes indicated in the act and that the levy constituted a special fund and did not go into the consolidated fund. One of us repelled those contentions holding that the features relied on were not destructive of the real nature of the levy, Which was a tax. An appeal to a division bench was dismissed: and a petition for leave to appeal was dismissed by the supreme court. In ahmedabad manufacturing & calico printing co. Ltd., Ahmedabad v. State of gujarat & others (air. 1967 sc. 1916 at 1920) it was ruled by the supreme court that the imposition of a tax for a particular purpose (in that case the gujarat education cess) cannot destroy its character as a tax. We are therefore unable to accept the contention of the petitioners that the levy in question is a fee and not a tax. If the levy is a tax, No question of quid pro quo or performance of services or rendering of the benefits can arise.

11. It was contended that there was discrimination in so far as the property tax is levied in respect of the buildings owned by the port only from 141970, Whereas, From the rest of the persons in the willingdon island like the petitioners in these o. Ps, The levy was from 141969. But the port was able to get this concession by reason of some agreement between it and the corporation. A copy of the agreement is produced in one of the petitions before us (o. P. No. 1904 of 1970). The agreement itself constitutes ground for a rational classification based on intelligible differentia.

12. All the contentions urged by counsel for the petitioners fall. We dismiss these writ petitions, But without any order as to costs. Dismissed.