State of Orissa v M. A. Tulloch and Co. (1963)

The case answers two questions every interpretation paper returns to. First, how do you know one law has displaced another? Not only by finding clauses that contradict each other: if the superior legislature shows an intention to cover the whole field, the other law gives way simply because both exist. Second, does s. 6 of the General Clauses Act save accrued liabilities when the earlier law disappears by implied repeal, not express repeal? The Court said yes — and so a State lost the argument on the field but won the appeal.

Tulloch & Co. worked a manganese mine in Orissa under a lease granted under Central Act 53 of 1948. The Orissa Legislature, under Entry 23 of the State List, passed the Orissa Mining Areas Development Fund Act 1952, which let the State levy a fee on a percentage of the value of ore at the pit's mouth to develop "mining areas".

Parliament then enacted the Mines and Minerals (Regulation and Development) Act 1957 under Entry 54 of the Union List, with the declaration that entry requires. It came into force on 1 June 1958.

On 1 August 1960 the State demanded fees for quarters that had fallen due before 1 June 1958. The company challenged the demand under Art. 226. The Orissa High Court held that from 1 June 1958 the Orissa Act must be deemed non-existent for every purpose, and quashed even the demand notices; it later refused the State's review application. The State appealed on a certificate under Art. 132.

1. Did the Central Act of 1957 cover the same field as the Orissa Act, so that the State Act was superseded?
2. Was there no inconsistency until the Central Government actually framed rules under the Central Act?
3. Could the State fee survive as an exercise of the separate power to levy "fees"?
4. Even if the Orissa Act was superseded, could fees that accrued before 1 June 1958 still be recovered — does s. 6 of the General Clauses Act apply to an implied repeal?

The appeals were allowed and the writ petitions dismissed; no order as to costs, because the State had failed on its main submissions.

Same field: the Orissa Act was superseded

The Court held the point concluded by Hingir-Rampur Coal Co. v State of Orissa [1961] 2 SCR 537, which had held that where a Central Act carries the Entry 54 declaration and covers the field of the State Act, the State Act would be void "not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law." The 1957 Act was, if anything, wider than the 1948 Act on this point.

Whole-field repugnancy: no need to wait for rules

On the argument that nothing conflicted until rules were framed, the Court said:

"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."

And: "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." Having regard to s. 18(1), the Court found "the intention of Parliament was to cover the entire field".

The fee argument failed

The power to levy a fee depends on a "matter in the list". Once the declaration took over the subject of conservation and development of minerals, that matter was, to the extent of the declaration, "subtracted from the scope and ambit of Entry 23 of the State List", leaving "no matter in the List" to which the fee could be related.

Section 6 applies to implied repeals

This is where the State won. The Court held that the principle behind s. 6 is "that every later enactment which supersedes an earlier one or puts an end to an earlier state of the law is presumed to intend the continuance of rights accrued and liabilities incurred under the superseded enactment". It added that "there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases" — there is no difference in intention or in substance.

So: "Where an intention to effect a repeal is attributed to a legislature then the same would in our opinion, attract the incident of the saving found in s. 6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted."

The fees had accrued before 1 June 1958, so the demand notices were valid and the amounts could be recovered "notwithstanding the disappearance of the Orissa Act by virtue of the superior legislation by the Union Parliament."

1. Repugnancy is not only direct contradiction. Where the legislature of superior efficacy shows, expressly or impliedly, an intention to occupy the whole field, the other legislature's law is overborne by the mere co-existence of the two laws — even before rules are made under the superior law.
2. The saving in s. 6 of the General Clauses Act is not confined to express repeals. Supersession by repugnant legislation is a repeal by necessary implication, and accrued rights and liabilities under the superseded law survive unless the later law shows a contrary intention.

• Implied repeal and savings: Does s. 6 of the General Clauses Act apply where a statute is impliedly repealed? This is the leading answer: yes, because express and necessarily implied provisions differ only in form.
• Repugnancy / occupied field: Explain the tests of repugnancy between Central and State laws. Give the direct-conflict test, then the whole-field test from this case, and the point that a field can be occupied before any rules are framed.
• Harmonious construction of legislative entries: use the fee reasoning — a fee must relate to a "matter in the list", and a Parliamentary declaration can subtract the matter from the State entry.
• Problem question: a State levy is displaced by a later Central law; can arrears due before the Central law be recovered? Apply the s. 6 holding: yes, unless the later law shows a contrary intention.