Indian Small Scale Paint Association Society Vs. State of Maharashtra and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1175678
CourtMumbai High Court
Decided OnDec-15-2015
Case NumberWrit Petition No. 4029 of 2014
JudgeA.S. OKA & G.S. PATEL
AppellantIndian Small Scale Paint Association Society
RespondentState of Maharashtra and Others
Excerpt:
g.s. patel, j. 1. on 14th october 2014, notice was issued to the respondents for final disposal of this petition at the admission stage returnable on 24th november 2015. hence: rule. respondents waive service. by consent, rule is made returnable forthwith and petition called out and taken up for hearing and final disposal. 2. the challenge in this petition is to the legality and validity of the maharashtra solvent raffinate and slop (licensing) order 2007 (âthe impugned orderâ?; âthe state orderâ?). 3. the petitioner is an association and a society of manufacturers of paints of various kinds and descriptions. the petitioner associationâ™s members are all small scale units. they manufacture paint formulations by combining various raw materials in different proportions to get the desired quality of paint. the relevant raw materials fall into several groups, such as film forming materials, pigments and extenders, solvents and additives. many of these are petroleum byproducts. 4. petroleum products are covered by entry 53 of list-i of the constitution of india. the items in this list are covered by the petroleum act, 1934, and the central government has framed rules in 1976 under that act. chapter 1 of the petroleum act, 1934 deals with control over petroleum. the relevant rules specify that no license is required for the transport or storage of petroleum of certain classes. the petroleum rules, 1976 deal with the importation, transportation and storage of petroleum, licensing, refining and so on. this is stated in the petition principally to establish that it is the central government that has legislative authority over many of the items used by the petitionerâ™s members. 5. the essential commodities act, 1955 (âthe ec actâ?; the) is enacted in order to provide, in the general public interest, control over the production, supply and distribution of trade and commerce in certain commodities specified in the schedule to that act to be âessential commoditiesâ?. petroleum is one of these. the purpose of the ec act is to ensure that the prices and distribution of these essential commodities are maintained in a manner optimally beneficial to the public interest. 6. the central governmentâ™s ministry of petroleum and natural gas issued the solvents, raffinates and slop (acquisition, sale, storate and prevention of automobile) order, 2000 (âthe central orderâ?). 7. it is the case of the petitioner that the impugned order is that there is an impermissible repugnancy between the state order and the central order, and that the former unlawfully contains restrictions not to be found in the latter. 8. we have heard mr. kanuga for the petitioner and mr. gokhale for respondent nos. 1 to 4 at some length. with their assistance, we have carefully considered the material on record. 9. it is first necessary to make reference to the central order. (petition, ex. d-1, pp. 40-42) that order is clearly issued in exercise of the powers conferred by section 3 of the ec act. section 3 imposes certain restrictions on the sale and use of solvents, raffinates slops with other products. it reads: â3. restriction on sale and use of solvents, raffinates, slops and other product.â” (1) no person shall either acquire, store or sell solvents included in the schedule without a licence issued by the state government or the district magistrate or any other officer authorised by the central or the state government. provided that no such licence shall be required for consumption of 50 kilo litres per month or less and stock at a given time of 20 kilo litres or less of solvents listed in the schedule combined. (2) no person shall either use or help in any manner the use of solvents, raffinates, slops or their equivalent or other product except motor spirit and high speed diesel, in any automobile: provided that nothing in this order shall preclude the use of such products for research purposes on automobiles. (3) any person whosoever is engaged in the sale or trading of solvents, raffinates, slops or their equivalent and other product, either imported or indigenous, for any purpose, whatsoever, shall file end-use certificates from consumers to whom he sells and furnish customer-wise sales to the district magistrate or to the state civil supplies authorities, on a quarterly basis. (4) any person whosoever is engaged in use of solvents, raffinates, slops or their equivalent and other product, either imported or indigenous for manufacture of any petrochemicals or any other purpose shall file end-use certificates to the district magistrate or the state civil supplies authorities, on a quarterly basis. (5) the central government may, by order, notify the form required for making application and the format in which licence, shall be issued under sub-clause (1), and issue guidelines as may be necessary for giving effect to the provisions of this order.â? (emphasis added) 10. mr. kanugaâ™s submission is directed specifically to the proviso to clause 3(1) and to clauses 3(3) and 3(5). these, in his submission, govern the field and it is not possible for the state to have issued its impugned prder in a manner repugnant to any of these provisions. 11. mr. kanuga first attempted a submission that the issuance of the impugned order was itself a case of impermissible delegation. we asked mr. gokhale to take instructions and in response he placed on record a copy of an order dated 30th november 1974 issued by the ministry of industry and civil supplies under section 5 of the ec act by which the central government specifically delegated all its powers, including those in section 3(1) of that act, and conferred a delegated authority to make orders in respect of the matters specifically in clauses (d), (e), (f ), (g), (h), (i), (ii) and (j) of sub-section (2). there is, therefore, clearly a valid delegation by the central government to the state government of all the necessary powers. the delegating order is unchallenged. mr. kanuga submits that the delegation notification is issued by the civil supplies department and not by the petroleum ministry. this is surely irrelevant. the question is of delegation under the essential commodities act, and even the central order (which according to mr. kanuga, governs the field) was issued under section 3 of that act. 12. in order to appreciate mr. kanugaâ™s submission on the issue of repugnancy, we must consider the provisions of the impugned order dated 25th january 2007 (exhibit âeâ?, pp. 51-85).this order is also clearly issued under section 3(i) of the ec act, evidently in pursuance of the delegated power referred to earlier. the relevant portions read: â3. prohibition against acquisition, storage, sale, storage for sale or consumption without license:- (a) no person shall either acquired, store, sell or consumer solvent, raffinate and slop included in the schedule i except under and in accordance with the terms and conditions of a license issued in this behalf by he licensing authority. provided that no such license shall be required for consumption of 50 kls per month or less and storage for consumption of 20 kls or less of solvent raffinate and slop and for which such person shall first register himself as a consumer with the licensing authority under the provision of this order. (b) no person shall import in the state of maharashtra, solvent raffinate and slop included in the schedule i either from other state or country unless he has obtained a license for its acquisition, storage, sale, storage for sale or consumption under this order. (c) no person shall either acquire solvent, raffinate and slop except from an oil company or a license or sell solvent, raffinate and slop to any person except a licensee or a registered consumer. (d) no person shall either use or help in any manner, the use of solvent, raffinate and slop in any automobile. (e) no person shall either use or help in any manner adulterating of motor spriti or high speed diesel with solvent, raffinate and slop; (f) no person a licensee an oil company or otherwise shall sell solvent raffinate and slop included in the schedule i to any person other than a licensee or a registered consumer.â? (emphasis added) 13. since mr. kanuga seeks to contrast the provisions of the central order with the state order, it may be convenient to tabulate both of these provisions side by side. central order state order â3. restriction on sale and use of solvents, raffinates, slops and other product.â” (1) no person shall either acquire, store or sell solvents included in the schedule without a licence issued by the state government or the district magistrate or any other officer authorised by the central or the state government. â3. prohibition against acquisition, storage, sale, storage for sale or consumption without license:- (a) no person shall either acquired, store, sell or consumer solvent, raffinate and slop included in the schedule i except under and in accordance with the terms and conditions of a license issued in this behalf by he licensing authority. provided that no such licence shall be required for consumption of 50 kilo litres per month or less and stock at a given time of 20 kilo litres or less of solvents listed in the schedule combined. provided that no such license shall be required for consumption of 50 kls per month or less and storage for consumption of 20 kls or less of solvent raffinate and slop and for which such person shall first register himself as a consumer with the licensing authority under the provision of this order. (2) no person shall either use or help in any manner the use of solvents, raffinates, slops or their equivalent or other product except motor spirit and high speed diesel, in any automobile: (b) no person shall import in the state of maharashtra, solvent raffinate and slop included in the schedule i either from other state or country unless he has obtained a license for its acquisition, storage, sale, storage for sale or consumption under this order. provided that nothing in this order shall preclude the use of such products for research purposes on automobiles. (3) any person whosoever is engaged in the sale or trading of solvents, raffinates, slops or their equivalent and other product, either imported or indigenous, for any purpose, whatsoever, shall file end-use certificates from consumers to whom he sells and furnish customer-wise sales to the district magistrate or to the state civil supplies authorities, on a quarterly basis. (c) no person shall either acquire solvent, raffinate and slop except from an oil company or a license or sell solvent, raffinate and slop to any person except a licensee or a registered consumer. (4) any person whosoever is engaged in use of solvents, raffinates, slops or their equivalent and other product, either imported or indigenous for manufacture of any petrochemicals or any other purpose shall file end-use certificates to the district magistrate or the state civil supplies authorities, on a quarterly basis. (d) no person shall either use or help in any manner, the use of solvent, raffinate and slop in any automobile. (5) the central government may, by order, notify the form required for making application and the format in which licence, shall be issued under sub-clause (1), and issue guidelines as may be necessary for giving effect to the provisions of this order.â? (e) no person shall either use or help in any manner adulterating of motor spriti or high speed diesel with solvent, raffinate and slop; (f) no person a licensee an oil company or otherwise shall sell solvent raffinate and slop included in the schedule i to any person other than a licensee or a registered consumer.â? 14. mr. kanuga directs his attention firstly to the proviso to clause 3(a) of the state order and specifically to the portion emphasized above. it is his submission that the requirement for a person to register himself as a consumer with the licensing authority under the impugned order is unlawful and is repugnant to the central order since no such registration is contemplated by the proviso to clause 3(i) of the central order. 15. in our view, this submission is misconceived. a provision for registration cannot be equated with a requirement of licensing. conceptually and in their intended purpose, the two are entirely distinct. registration, even compulsory registration, is merely record keeping and, on its own, nothing more: municipal registers of births, marriages and deaths, for instance, are only repositories of certain information. licensing, on the other hand, involves the grant of a permission; that but for which the activity involved would be unauthorised or even illegal. the proviso to clause 3(a) of the state order is of the former variety, a mere register. it is in no sense a requirement of licensing or the grant of permission. it does not mandate any additional license for consumption or storage of specified quantities (consumption of 50 kls per month or less and storage for consumption of 20 kls or less of solvent raffinate or slop). the maximum quantities are the same in both the central order and in the impugned order. it is true that the central order does not have any requirement for registration. but it is equally true that the proviso to clause 3(a) of the impugned order specifically states, in complete conformity with the central order, that no such license is required for the consumption or storage of these quantities. all that the state order says is that for storage or consumption of these quantities, a person must be registered. it must be noted that there is no provision in the state order to refuse registration. consequently, the registration requirement in the state order cannot be said to be repugnant to the central order. it is perhaps an efficient method of record keeping, but nothing further. 16. mr. kanuga may, however, be correct in his submission that clause 3(b) of the impugned order is on the face of it contrary to and repugnant to the central order. that clause specifically states that any importation into the state requires a license for the acquisition, storage, sale, storage for sale or consumption. there is no such licensing permissible under the central order in the matter of importation. the restriction in clause 3 of the central order is the requirement of obtaining a license for acquisition, storage or sale of solvents. there is no additional or separate license for importation. in fact, sub-clauses (3) and (4) of clause 3 of the central order only require filing of certain end-use certificates and furnishing customer-wise sales. now the very notification of delegation produced by mr. gokhale in term says in sub-clauses (3) that the state government may not issue any order in pursuance of the delegated powers if they are inconsistent with any order issued by the central government under the ec act. we are unable to agree with mr. gokhale that clause 3(b) of the state order is not inconsistent. it appears to us clearly an additional licensing imposition not to be found in any part of the central order. to that extent, sub-clause 3(b) of the impugned order will have to be held to be repugnant. 17. mr. kanugaâ™s final submission need not detain us. he submits that the very existence of the impugned order is a repugnancy in and of itself. the field, he submits, is fully occupied by the central order and the state government has no authority in law to make the impugned order. this appears to us to be inaccurate. clause 3(a) of the central order specifically permits licensing by the state or by a district magistrate, the latter being an officer and functionary of the state. read with the delegation notification, this means that the state government may have its own licensing regime provided it is not inconsistent with the central order. 18. in any case, the question of repugnancy between a central legislation and a state legislation is no longer res integra. principally the same arguments were canvassed and considered in the judgment dated 23rd december 2013 in petrol dealers association and anr. v state of maharashtra and ors., (writ petition no. 3018 of 1998, decided on 23rd december 2013; manu/mh/2247/2013)to which one of us (a.s. oka j) was a party. in paragraphs 8 and 10, this court held thus: â8. the supreme court in the case of deep chand (supra) considered the repugnancy between two statutes, one being a central act â” motor vehicles (amendment) act, 1956 and the other being a state act â” u.p. transport service (development) act, 1955. the supreme court considered three tests of inconsistency of repugnancy formulated by nicholas in his australian constitution, second edition, page 303. they are as follows: â˜(1) there may be inconsistency in the actual terms of the competing statutes; (2) though there may be no direct conflict, a state law may be inoperative because the commonwealth law, or the award of the commonwealth court, is intended to be a complete exhaustive code; and (3) even in the absence of intention, a conflict may arise when both state and commonwealth seek to exercise their powers over the same subject matter.â™ the court noted with approval the aforesaid three tests and laid down the following principles for ascertaining repugnancy between two statutes. â˜repugnancy between two statutes may thus be ascertained on the basis of the following three principles: (1) whether there is direct conflict between the two provisions; (2) whether parliament intended to lay down an exhaustive code in respect of the subject matter replacing the act of the state legislature; and (3) whether the law made by parliament and the law made by the state legislature occupy the same field.â™â? 10. the supreme court in the case of tulloch and co. (supra) considered this repugnance from the two standpoints. these are explained by the court in paragraph 15 of the judgment as follows: â˜15. 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 enactmento f one legislature had 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 order. 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.â™ thus, repugnancy would arise where there is a direct collision between the two enactments so that the two cannot stand together or even where one enactment occupied the whole field so that the mere existence of the other enactment amounts to repugnancy. in either case the statute of the legislature having superiority over the other, i.e., the one expressly colliding in the first case and that which occupies the whole field in the second, will prevail.â? 19. in this view of the matter, we are unable to accept mr. kanugaâ™s submissions in their entirety. he is correct to the limited extent indicated above. 20. the petition therefore succeeds in part. sub-clause (b) of clause 3 of the state (impugned) order dated 25th january 2007 is null and void and is hereby quashed and set aside. the remaining provisions of the impugned order are held not to be repugnant to the central order or for want of delegation. 21. rule is partly made absolute in the above terms. the petition is disposed of with no order as to costs.
Judgment:

G.S. Patel, J.

1. On 14th October 2014, notice was issued to the Respondents for final disposal of this Petition at the admission stage returnable on 24th November 2015. Hence: Rule. Respondents waive service. By consent, Rule is made returnable forthwith and Petition called out and taken up for hearing and final disposal.

2. The challenge in this Petition is to the legality and validity of the Maharashtra Solvent Raffinate and Slop (Licensing) Order 2007 (âthe impugned Orderâ?; âthe State Orderâ?).

3. The Petitioner is an association and a society of manufacturers of paints of various kinds and descriptions. The Petitioner Associationâ™s members are all small scale units. They manufacture paint formulations by combining various raw materials in different proportions to get the desired quality of paint. The relevant raw materials fall into several groups, such as film forming materials, pigments and extenders, solvents and additives. Many of these are petroleum byproducts.

4. Petroleum products are covered by Entry 53 of List-I of the Constitution of India. The items in this list are covered by the Petroleum Act, 1934, and the Central Government has framed Rules in 1976 under that Act. Chapter 1 of the Petroleum Act, 1934 deals with control over petroleum. The relevant rules specify that no license is required for the transport or storage of petroleum of certain classes. The Petroleum Rules, 1976 deal with the importation, transportation and storage of petroleum, licensing, refining and so on. This is stated in the Petition principally to establish that it is the Central Government that has legislative authority over many of the items used by the Petitionerâ™s members.

5. The Essential Commodities Act, 1955 (âthe EC Actâ?; the) is enacted in order to provide, in the general public interest, control over the production, supply and distribution of trade and commerce in certain commodities specified in the Schedule to that Act to be âessential commoditiesâ?. Petroleum is one of these. The purpose of the EC Act is to ensure that the prices and distribution of these essential commodities are maintained in a manner optimally beneficial to the public interest.

6. The Central Governmentâ™s Ministry of Petroleum and Natural Gas issued the Solvents, Raffinates and Slop (Acquisition, Sale, Storate and Prevention of Automobile) Order, 2000 (âthe Central Orderâ?).

7. It is the case of the Petitioner that the impugned order is that there is an impermissible repugnancy between the State Order and the Central Order, and that the former unlawfully contains restrictions not to be found in the latter.

8. We have heard Mr. Kanuga for the Petitioner and Mr. Gokhale for Respondent Nos. 1 to 4 at some length. With their assistance, we have carefully considered the material on record.

9. It is first necessary to make reference to the Central Order. (Petition, Ex. D-1, pp. 40-42) That order is clearly issued in exercise of the powers conferred by Section 3 of the EC ACt. Section 3 imposes certain restrictions on the sale and use of solvents, raffinates slops with other products. It reads:

â3. Restriction on sale and use of solvents, raffinates, slops and other product.â”

(1) No person shall either acquire, store or sell solvents included in the schedule without a licence issued by the State Government or the District Magistrate or any other officer authorised by the Central or the State Government. PROVIDED THAT no such licence shall be required for consumption of 50 kilo litres per month or less and stock at a given time of 20 Kilo litres or less of solvents listed in the Schedule combined.

(2) No person shall either use or help in any manner the use of solvents, raffinates, slops or their equivalent or other product except motor spirit and high speed diesel, in any automobile:

PROVIDED THAT nothing in this Order shall preclude the use of such products for research purposes on automobiles.

(3) Any person whosoever is engaged in the sale or trading of solvents, raffinates, slops or their equivalent and other product, either imported or indigenous, for any purpose, whatsoever, shall file end-use certificates from consumers to whom he sells and furnish customer-wise sales to the District Magistrate or to the State Civil Supplies Authorities, on a quarterly basis.

(4) Any person whosoever is engaged in use of solvents, raffinates, slops or their equivalent and other product, either imported or indigenous for manufacture of any petrochemicals or any other purpose shall file end-use certificates to the District Magistrate or the State Civil Supplies Authorities, on a quarterly basis.

(5) The Central Government may, by order, notify the form required for making application and the format in which licence, shall be issued under sub-clause (1), and issue guidelines as may be necessary for giving effect to the provisions of this Order.â?

(Emphasis added)

10. Mr. Kanugaâ™s submission is directed specifically to the proviso to Clause 3(1) and to Clauses 3(3) and 3(5). These, in his submission, govern the field and it is not possible for the State to have issued its impugned Prder in a manner repugnant to any of these provisions.

11. Mr. Kanuga first attempted a submission that the issuance of the impugned Order was itself a case of impermissible delegation. We asked Mr. Gokhale to take instructions and in response he placed on record a copy of an order dated 30th November 1974 issued by the Ministry of Industry and Civil Supplies under Section 5 of the EC Act by which the Central Government specifically delegated all its powers, including those in Section 3(1) of that Act, and conferred a delegated authority to make orders in respect of the matters specifically in Clauses (d), (e), (f ), (g), (h), (i), (ii) and (j) of sub-section (2). There is, therefore, clearly a valid delegation by the Central Government to the State Government of all the necessary powers. The delegating order is unchallenged. Mr. Kanuga submits that the delegation notification is issued by the Civil Supplies Department and not by the Petroleum Ministry. This is surely irrelevant. The question is of delegation under the Essential Commodities Act, and even the Central Order (which according to Mr. Kanuga, governs the field) was issued under Section 3 of that Act.

12. In order to appreciate Mr. Kanugaâ™s submission on the issue of repugnancy, we must consider the provisions of the impugned order dated 25th January 2007 (Exhibit âEâ?, Pp. 51-85).This Order is also clearly issued under Section 3(i) of the EC Act, evidently in pursuance of the delegated power referred to earlier. The relevant portions read:

â3. Prohibition against acquisition, Storage, Sale, Storage for sale or consumption without license:-

(a) No person shall either acquired, store, sell or consumer Solvent, Raffinate and Slop included in the Schedule I except under and in accordance with the terms and conditions of a license issued in this behalf by he Licensing Authority.

Provided that no such license shall be required for consumption of 50 Kls per month or less and storage for consumption of 20 Kls or less of Solvent Raffinate and Slop and for which such person shall first register himself as a consumer with the Licensing Authority under the provision of this order.

(b) No person shall import in the State of Maharashtra, Solvent Raffinate and Slop included in the schedule I either from other state or country unless he has obtained a license for its acquisition, storage, sale, storage for sale or consumption under this order.

(c) No person shall either acquire Solvent, Raffinate and Slop except from an oil company or a license or sell Solvent, Raffinate and Slop to any person except a licensee or a registered consumer.

(d) No person shall either use or help in any manner, the use of Solvent, Raffinate and Slop in any automobile.

(e) No person shall either use or help in any manner adulterating of Motor Spriti or High Speed Diesel with Solvent, Raffinate and Slop;

(f) No person a licensee an Oil Company or otherwise shall sell Solvent Raffinate and Slop included in the Schedule I to any person other than a licensee or a registered consumer.â?

(Emphasis added)

13. Since Mr. Kanuga seeks to contrast the provisions of the Central Order with the State Order, it may be convenient to tabulate both of these provisions side by side.

Central Order State Order

â3. Restriction on sale and use of solvents, raffinates, slops and other product.â”

(1) No person shall either acquire, store or sell solvents included in the schedule without a licence issued by the State Government or the District Magistrate or any other officer authorised by the Central or the State Government.

â3. Prohibition against acquisition, Storage, Sale, Storage for sale or consumption without license:-

(a) No person shall either acquired, store, sell or consumer Solvent, Raffinate and Slop included in the Schedule I except under and in accordance with the terms and conditions of a license issued in this behalf by he Licensing Authority.

PROVIDED THAT no such licence shall be required for consumption of 50 kilo litres per month or less and stock at a given time of 20 Kilo litres or less of solvents listed in the Schedule combined.

PROVIDED THAT no such license shall be required for consumption of 50 Kls per month or less and storage for consumption of 20 Kls or less of Solvent Raffinate and Slop and for which such person shall first register himself as a consumer with the Licensing Authority under the provision of this order.

(2) No person shall either use or help in any manner the use of solvents, raffinates, slops or their equivalent or other product except motor spirit and high speed diesel, in any automobile:

(b) No person shall import in the State of Maharashtra, Solvent Raffinate and Slop included in the schedule I either from other state or country unless he has obtained a license for its acquisition, storage, sale, storage for sale or consumption under this order.

PROVIDED THAT nothing in this Order shall preclude the use of such products for research purposes on automobiles.

(3) Any person whosoever is engaged in the sale or trading of solvents, raffinates, slops or their equivalent and other product, either imported or indigenous, for any purpose, whatsoever, shall file end-use certificates from consumers to whom he sells and furnish customer-wise sales to the District Magistrate or to the State Civil Supplies Authorities, on a quarterly basis.

(c) No person shall either acquire Solvent, Raffinate and Slop except from an oil company or a license or sell Solvent, Raffinate and Slop to any person except a licensee or a registered consumer.

(4) Any person whosoever is engaged in use of solvents, raffinates, slops or their equivalent and other product, either imported or indigenous for manufacture of any petrochemicals or any other purpose shall file end-use certificates to the District Magistrate or the State Civil Supplies Authorities, on a quarterly basis.

(d) No person shall either use or help in any manner, the use of Solvent, Raffinate and Slop in any automobile.

(5) The Central Government may, by order, notify the form required for making application and the format in which licence, shall be issued under sub-clause (1), and issue guidelines as may be necessary for giving effect to the provisions of this Order.â?

(e) No person shall either use or help in any manner adulterating of Motor Spriti or High Speed Diesel with Solvent, Raffinate and Slop;

(f) No person a licensee an Oil Company or otherwise shall sell Solvent Raffinate and Slop included in the Schedule I to any person other than a licensee or a registered consumer.â?

14. Mr. Kanuga directs his attention firstly to the proviso to Clause 3(a) of the State Order and specifically to the portion emphasized above. It is his submission that the requirement for a person to register himself as a consumer with the Licensing Authority under the impugned order is unlawful and is repugnant to the Central Order since no such registration is contemplated by the proviso to Clause 3(i) of the Central Order.

15. In our view, this submission is misconceived. A provision for registration cannot be equated with a requirement of licensing. Conceptually and in their intended purpose, the two are entirely distinct. Registration, even compulsory registration, is merely record keeping and, on its own, nothing more: municipal registers of births, marriages and deaths, for instance, are only repositories of certain information. Licensing, on the other hand, involves the grant of a permission; that but for which the activity involved would be unauthorised or even illegal. The proviso to Clause 3(a) of the State Order is of the former variety, a mere register. It is in no sense a requirement of licensing or the grant of permission. It does not mandate any additional license for consumption or storage of specified quantities (consumption of 50 Kls per month or less and storage for consumption of 20 Kls or less of Solvent Raffinate or Slop). The maximum quantities are the same in both the Central Order and in the impugned order. It is true that the Central Order does not have any requirement for registration. But it is equally true that the proviso to Clause 3(a) of the impugned order specifically states, in complete conformity with the Central Order, that no such license is required for the consumption or storage of these quantities. All that the State Order says is that for storage or consumption of these quantities, a person must be registered. It must be noted that there is no provision in the State Order to refuse registration. Consequently, the registration requirement in the State Order cannot be said to be repugnant to the Central Order. It is perhaps an efficient method of record keeping, but nothing further.

16. Mr. Kanuga may, however, be correct in his submission that Clause 3(b) of the impugned order is on the face of it contrary to and repugnant to the Central Order. That Clause specifically states that any importation into the State requires a license for the acquisition, storage, sale, storage for sale or consumption. There is no such licensing permissible under the Central Order in the matter of importation. The restriction in Clause 3 of the Central Order is the requirement of obtaining a license for acquisition, storage or sale of solvents. There is no additional or separate license for importation. In fact, sub-clauses (3) and (4) of Clause 3 of the Central Order only require filing of certain end-use certificates and furnishing customer-wise sales. Now the very notification of delegation produced by Mr. Gokhale in term says in sub-clauses (3) that the State Government may not issue any order in pursuance of the delegated powers if they are inconsistent with any order issued by the Central Government under the EC Act. We are unable to agree with Mr. Gokhale that clause 3(b) of the State Order is not inconsistent. It appears to us clearly an additional licensing imposition not to be found in any part of the Central Order. To that extent, sub-clause 3(b) of the impugned order will have to be held to be repugnant.

17. Mr. Kanugaâ™s final submission need not detain us. He submits that the very existence of the impugned order is a repugnancy in and of itself. The field, he submits, is fully occupied by the Central Order and the State Government has no authority in law to make the impugned order. This appears to us to be inaccurate. Clause 3(a) of the Central Order specifically permits licensing by the State or by a District Magistrate, the latter being an officer and functionary of the State. Read with the delegation notification, this means that the State Government may have its own licensing regime provided it is not inconsistent with the Central Order.

18. In any case, the question of repugnancy between a Central legislation and a State legislation is no longer res integra. Principally the same arguments were canvassed and considered in the judgment dated 23rd December 2013 in Petrol Dealers Association and Anr. v State of Maharashtra and Ors., (Writ Petition No. 3018 of 1998, decided on 23rd December 2013; MANU/MH/2247/2013)to which one of us (A.S. Oka J) was a party. In paragraphs 8 and 10, this Court held thus:

â8. The Supreme Court in the case of Deep Chand (supra) considered the repugnancy between two statutes, one being a Central Act â” Motor Vehicles (Amendment) Act, 1956 and the other being a State Act â” U.P. Transport Service (Development) Act, 1955. The Supreme Court considered three tests of inconsistency of repugnancy formulated by Nicholas in his Australian Constitution, Second Edition, page 303.

They are as follows:

â˜(1) There may be inconsistency in the actual terms of the competing statutes;

(2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code; and

(3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter.â™

The Court noted with approval the aforesaid three tests and laid down the following principles for ascertaining repugnancy between two statutes. â˜Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:

(1) Whether there is direct conflict between the two provisions;

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and

(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.â™â?

10. The Supreme Court in the case of Tulloch and co. (supra) considered this repugnance from the two standpoints. These are explained by the Court in paragraph 15 of the judgment as follows:

â˜15. 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 enactmento f one Legislature had 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 order. 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.â™ Thus, repugnancy would arise where there is a direct collision between the two enactments so that the two cannot stand together or even where one enactment occupied the whole field so that the mere existence of the other enactment amounts to repugnancy. In either case the statute of the legislature having superiority over the other, i.e., the one expressly colliding in the first case and that which occupies the whole field in the second, will prevail.â?

19. In this view of the matter, we are unable to accept Mr. Kanugaâ™s submissions in their entirety. He is correct to the limited extent indicated above.

20. The Petition therefore succeeds in part. Sub-clause (b) of Clause 3 of the State (impugned) Order dated 25th January 2007 is null and void and is hereby quashed and set aside. The remaining provisions of the impugned order are held not to be repugnant to the Central Order or for want of delegation.

21. Rule is partly made absolute in the above terms. The Petition is disposed of with no order as to costs.