LexKERALA STATE ELECTRICITY BOARD versus INDIAN ALUMINIUM CO.
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552 KERALA STATE ELECTRICITY BOARD v. INDIAN ALUMINIUM CO. September 1, 1975 [A. ALAGJRISWAMI, P. N. BHAGWATI, P. K. GOSWAMI, R. S. SARKARIA AND A. C. GUPTA, JJ.] Kerala E:ssential Articles Control (Ten1porary Powers) Act, 1961, S.2(a) and S.3-Kerala State E/Ectricity Supply (K'lTala State Electricity Board and Licensees Areas) Surcharffie Order made under s. 3-ConstitutionltJ validity of-Constitutidn of India, 1950-Art, 246-Notwithstanding'' and "Subject to" in Art. 246(1) and (3) 111eaning of-Entries 43 and 44 of List I and Entry 38 of List Iff,--Doctrine of pith and substance. Presidential assent-If could be given td cure posiible repugna11cy-Ij could be given to notification.s--Assent to the whole Act not n1erely to one an1endmL11t when referred-Subordinar.e Legislation-Principle regarding validity of. Section 2(a) of the Kerala Es.sential Articles Control (Temporary Pov,..ers) Act, 1961 defines "essential article" as meaning any article (not being an essential article as defined in Essential Commodities Act. 1955) which may be declared by the Government by a. notification to be an essential article. A B c Section 3 enables the State Government, if or the opinion that it is necessary "'t or expedient so to do for maintaining or increasing the supplies of any essential D 'I article etc. to make certain notified orders. The Act was originally intended to be in force for five y~ars but its life was extended by successive amend-' men ts. In exercise of powers conferred by s.2(a) of the Kerala Act, the State Government declared 'electricity' as an essential article in 1965. In 1968, the State Government passed an Order called the Kerala State Electricity Supply (Kerala State Electricity Board and Licensees Areas) Surcharge Order, 1968, under s.3 of the Kerala Act, by which, the State Electricity Board was required E to collect surcharge from non-licensee consumers of electricity even though the Board may have entered into long term contra.:ts with them with regard to the rate at which electricity was to be ·supplied to them. The respondents, who were bulk consumzrs of electricity, questioned before the High Court the validity of the Order. The Order having been ~truck down by the High Court, in appeal to this Court, the respondents supported the judgment of the High Court on the grounds : (i) The Kcrala Act is repugnant to the Electricity Act. 1910 and the Electricity (Supply) Act. 1948 F (both of which are Central Acts) and, in particular the latter, which falls within Entries 43 and 44 of Lisi I; and that the State Act trenches upon th~1 field occupied by the 1948-Act which falls partly under Entry 43 of List I and partly under Entry 38 of List lll. On behalf of the appellants it was contended that the Kerala· Act falls under Entries 2·6 and 27 of List JI, and in any event, the Presidential assent to the K·e:rala Act has cured the repugnancy. Allowing the appeal (per majority-Alagirisw<in1i, Bhagwati, Goswami and Sarkaria. JJ.) : G HELD : The Kerala Acl, the declaration of 'electricity' as an essential article under s. 2(a), and th~ Surcharge Order made under s. 3, are valid. [581 Gl 1. The question of repugnance ari5es only in case both the legislations fall within the same List, namely. List Ill. If any legislation is enacted by a State I egisJature in respect of a matter falling within List I that will be void. There t ·.w, therefore, be no question of repugnance between the ElectricitY Act, 1910 ru ,d the Electricity (Supply) Act_ 1948 on the one hand, and the Kerala H Act on the other if' the first two Acts fall in List I or List TIT and the State Act in List II. [562 DJ !ndu Bhushan v. Sundari Devi [1970] 1 S.C.R. 443 referred to. t -t A B c ., D E F .... ~ • G 'I ,r H , KERALA STATE ELEC. BOARD v. INDIAN ALUMINIUM CO. 553 2. (a) The words: "notwithstanding" in clause ( 1) and 11subject to'' in clause (J) of Art 246 of the Constitution mean that where an entry is in general tCrDJB in List II and part of that entry is in specific terms in List ~ the entry in List I takes effect notwithstanding the entry in List II. This ts also on the principle thatJ the 'special" excludes the "general" and the general entry in List II is subject to the special entry in List I. [563 CJ (b) The word 11notwithstanding" also means that if it is not possible to reconcile the two entries, the entry in List I will prevail. But b
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