Subba Rao, J. - (1.) This appeal by special leave is against the Judgment and Order dated November15, 1960, of the High Court of Judicature at Calcutta dismissing the petition filed by the appellant under Art. 226 of the Constitution, and it raises the constitutional validity of the Oriental Gas Company Act, 1960, (W. B. Act XV of l960), hereinafter called the "impugned Act".
(2.) The facts that have given rise to this appeal may, be briefly stated. The Oriental Gas Company was originally, consituated by a deed of settlement dated April 25, 1853, by the name of the Oriental Gas Company, and it was subsequently registered in England under the provisions of the English Joint Stock Companies Act,1862. By Act V of 1857 passed by the Legislative Council of India, it was empowered to lay pipes in Calcutta and its suburbs and to excavate the streets for the said purpose. By Acts of the Legislative Council of India passed from time to time special powers were conferred on the said Company. In 1946 M/s Soorujmul Nagarmull, a firm carrying on business in India, purchased 98 per cent of the shares of the said Oriental Gas Company Limited. The said firm floated a limited liability Company named the Calcutta Gas Co. (Proprietary) Limited and it was registered in India with its registered office at Calcutta. On July 24, 1948, under an agreement entered into between the Oriental Gas Company and the Calcutta Gas Company, the latter was appointed the manager of the former Company in India for a period of 20 years from July 5, 1948. The Oriental Gas Company is the owner of the industrial undertaking, inter alia, for the production, manufacture, supply, distribution and sale of fuel gas in Calcutta. The Calcutta Gas Company, by virtue of the aforesaid arrangement, was in charge of its general management for a period of 20 years for remuneration. The West Bengal Legislature passed the impugned Act and it received the assent of the President on October 1, 1960. On October 3, 1960, the West Bengal Government issued three notifications - the first declaring that the said Act would come into force on October 3, 1960, the second containing the rules framed under the Act, and the third specifying October 7, 1960, as the date with effect from which the State Government would take over for a period of five years the management and control of the undertaking of the Oriental Gas Company for the purposes of, and in accordance with, the provisions of the said Act. The appellant i. e., the Calcutta Gas Company, filed a petition under Art. 226 of the Constitution in the High Court for West Bengal at calcutta for appropriate writs for restraining the State Government from giving effect to the said Act and for quashing the said notifications. Respondents 1 to 4 to the petition were the State of West Bengal and the concerned officers, and respondent 5 was the Oriental Gas Company Limited. In the petition, the appellant contested the consitutional validity of the Act on various grounds, and in the counter-affidavit, the contesting respondents, i. e., respondents 1 to 4, sought to sustain its validity and also questioned the maintainability of the petition at the instance of the appellant. Ray, J., gave the following findings on the contention raised before him: (1) The appellant has no legal right to maintain the petition; (2) the appellant cannot question the validity of the Act on the ground that its provisions infringed his fundamental rights under Arts. 14, 19 and 31 in view of Art,31A (1) (b) of the Constitution; (3) the West Bengal Legislature had the Legislative competence to pass the impugned Act by virtue of entry 42 of List III of the Seventh Schedule to the Constitution; (4) entry 25 of List II also confers sufficient authority and power on the State Legislature to make laws affecting gas and gas-works; and (5) even if the Act incidentally trenches upon any production aspect, the pith and substance of the legislation is gas and gas-works within the meaning of entry 25 of List II. The learned Judge rejected all the contentions of the appellant and dismissed the petition by his order dated November 15, 1960. Hence the appeal.
(3.) Learned Attorney-General, appearing for the appellant has repeated before us all the contentions, except that relating to fundamental rights, which his client had unsuccessfully raised before the High Court. His contentions may be summarised thus: (1)The finding of the High Court that the appellant has no locus standing to file the petition cannot be sustained, as under the impugned Act the appellant's legal rights under the agreement entered into by it with the Oriental Gas Company on July 24, 1948, were seriously affected. (2) Under Art. 226 of the Constitution Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I:Parliament in exercise of the said power passed the Industries (Development and Regulation) Act, 1951, by virtue of entry 52 of the said List; the two entries in List II, namely, entries 24 and 25, cannot sustain the Act, as entry 24 is subject to the provisions of entry 52 of List I; and entry 25 must be confined to matters other than those covered by entry 24, and, therefore, the West Bengal Legislature is not competent to make a law regulating the Gas industry. (3) Assuming that the State Legislature has power to pass the Act by virtue of entry 25 of List II, under Art. 254 (1) of the Constitution the law made by Parliament namely, the Industries (Development and Regulation) Act, 1951, shall prevail, and the law made by the State Legislature, namely, the impugned Act, shall be void to the extent of repugnancy. And (4) the view of the High Court that the validity of the Act could be sustained under entry 42 of List III is wrong, as under the impugned Act the State only takes over the management of the Company and manages it for and on behalf of the Company, whereas the concept of requisition under the said entry requires that the State shall take legal possession of property of the person from whom it is requisitioned, on its own behalf or on behalf of a petitioner other than the owner thereof.;