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Mr. Rakesh Dwivedi, learned senior counsel, who led the main argument by contending that the Parliament had no competence to make the Tobacco Board Act in its entirety, particularly in relation to growing and raw-materials of the tobacco industry, appearing for the State of Bihar contended, that the subject matter 'industry' in Entry 52 of List 1 of the VIIth Schedule cannot be construed to be all pervasive and the Constitution Bench of this Court in Tikaramji (supra) conclusively held that the raw-materials which are integral part of the industrial process cannot be included in the process of manufacture or production. According to Mr. Dwivedi, the Court should construe a particular entry in the Schedule in a manner so that the other Entries in the Schedule will not be otiose. Consequently, the raw-materials would be goods which would comprised in Entry 27 of List II and the manufacturing process or production would come within the ambit of expression 'industry' in Entry 24 of List II. Entry 24 of List II being subject to Entry 52 of List I, when Parliament makes a law in respect of an industry in exercise of its power referable to Entry 52 of List I then that expression cannot be wider than the word 'industry' in Entry 24 of List 2. It would, therefore, be given a restricted meaning to the expression 'industry', as was done by this Court in Tikaramji's case, which was followed in Calcutta Gas, Kannan Devan Hills and Ganga Sugar Corporation. According to Mr. Dwivedi, even in the case of B. Viswanathaiah & Co. vs. State of Karnataka (1991) 3 SCC 358, a three Judge Bench of this Court construed the declaration made in terms of Entry 52 of List I in relation to silk industry and held that taking over the control of raw silk industry must be restricted to the aspect of production and manufacture of silk yarn or silk and did not take in the earlier stages of the industry, namely the supply of raw-materials. According to Mr. Dwivedi, in the aforesaid case the Court unequivocally held that the declaration in Section 2, which is under Entry 52 of List I, do not in any way, limit the powers of the State Legislature to legislate in respect of goods produced by the silk industry. The Court so held being of the opinion that any wider interpretation to the expression 'industry' in Entry 52 of List 1 would render Entry 33 in List 3 to be otiose and meaningless. Mr. Dwivedi also further contended that both in Indian Aluminium Company (1992) 3 SCC 580 as well as Siel Ltd. And Others vs. Union of India and Others (1998) 7 SCC 26, Tikaramji and Calcutta Gas have been followed and it has been held that the term 'industry' in Entry 24 of List II and Entry 52 of List 1 could have the same meaning and it would not take within its ambit Trade and Commerce or production, supply and distribution of goods coming within the province of Entry 26 and 27 of List II. Referring to the Constitution Bench decision of this Court in Belsund Sugar Mills (1999) 9 SCC 620, Mr. Dwivedi submits that in the aforesaid case the Court was construing the provisions in Entry 28 of List II as well as Entry 33 of List III and sugar and sugar cane having been held as food stuff coming within the ambit of Entry 33 of List III, the Market Committee Act referable to Entries 26, 27 and 28 of List II was held to be subject to the Sugar Cane Act. Thus industry in Entry 24 of List II and Entry 52 of List I would not cover the subject matter coming within the ambit of Entries 26 and 27 of List II or Entry 33 of List III. It is therefore urged, that the raw tobacco which would be a produce of agriculture and thus the raw-material for the tobacco industry, which required to be cured and processed and for such a raw-material for the tobacco industry, the Parliament cannot make any legislation by making a declaration and taking over the control of tobacco industry under Entry 52 of List I. Tobacco, not being a food stuff, the same will also not come within the ambit of Entry 33 of List III, and therefore, the raw-tobacco would continue to be within the exclusive domain of the State Legislature and State Legislature would have power to make law in relation to the raw-tobacco which would be referable to Entry 14 (Agriculture), Entries 26, 27 and 28 of List II, as has been held by this Court in the Constitution Bench decision in the case of Belsund Sugar (supra). Mr. Dwivedi contends that judged from this angle to the extent the Tobacco Board Act seeks to regulate the market by providing for auction platform and by seeking to regulate growing of raw-tobacco, must be held to be beyond the competence of Parliament, and on the other hand, is within the exclusive domain of the State Legislature. State Legislature having provided for a market where alone the trade and commerce in and the production supply and distribution of tobacco can take place, the Tobacco Board Act would cease to operate and it is the State law which would prevail. With reference to the judgments in M.A. Tulloch and Baij Nath Kedia relied upon in the majority judgment of ITC's case, Mr. Dwivedi contends that those decisions will have no application, inasmuch as a comparison of Entry 23 of List II and Entry 54 of List I would indicate that the head of the Legislation is one and the same, and Entry 23 of List II itself is subject to Entry 54 of List I. Necessarily, therefore, the entire field, which was there available for the State Legislature to make law under Entry 23 of List II, once assumed by the Parliament under Entry 54 of List I, then the State Legislature is denuded of its power. Question of giving narrow meaning or wider meaning to the legislative Entry does not arise for consideration in those cases. Accordingly the majority judgment of this Court committed error in construing the meaning to be given to the word 'industry' under Entry 52 of List I by relying upon the decision under Mining Legislation, which was wholly unwarranted. Mr. Dwivedi urged that even the Tobacco Board Act has not been made operative in the State of Bihar and several other States, for instance, Section 13, 13A and 14A. This being the position, in the States where aforesaid provision had not been brought into force, there cannot be any difficulty in allowing the State Act, namely, the Agricultural Market Committee Act to operate. With reference to legislative history for the expression 'industry' in Entry 52 of List I, Mr. Dwivedi contends that the fact that a separate entry was made for regulating trade and commerce, production, supply and distribution of the products of controlled industry would suggest that the expression 'industry' in Entry 52 of List I will have a restricted meaning. Mr. Dwivedi urged that if the contention of the appellant, that the word 'industry' in Entry 52 of List I should be given a wider interpretation is correct, then the same would be destructive of the scheme pertaining to distribution of powers. Mr. Dwivedi refers to the judgment of this Court in Tikaramji as well as the judgment of Full Bench of Allahabad High Court in SIEL case and points out as to how the law relating to trade and commerce and production, supply and distribution of goods has been traced in these two cases and how after the end of the second world war when emergency was lifted, the power to enact on the subject was given to the Central Legislature by India (Central Government & Legislature) Act, 1946. Mr. Dwivedi urged, even though under Government of India Act 1935, the subject of trade, commerce, production, supply and distribution of goods was within the competence of the provincial legislature, the law was made temporarily by the Central Legislature. Under the Constitution of India, Article 369 was included which empowers the Parliament to make laws for 5 years with respect to trade and commerce in and the production, supply and distribution of certain specified products. That very Article 369 shows that the subject matters of raw-cotton, raw-jute, cotton seed etc. would be covered by the Entries in List II and even the marginal note of Article 369 throws sufficient light on the subject. By referring to Articles 249, 250, 252 and 253, the learned counsel urged that they are special provisions which provide that in the national interest, during proclamation of emergency with the consent of two or more states Parliament can make law with respect of any of the matters coming within the State List. In fact in the Constituent Assembly there was a heated debate in relation to Article 249 and there was a strong objection to wide power being given by that Article for legislation in the national interest with respect to the State List. The Founding Fathers apprehended that in the name of national interest the federal character of the Indian polity could be completely destroyed and India could be converted into a unitary state, therefore, Article 249 was re- tailored and was provided for a shorter duration of operation of parliamentary law so made. Mr. Dwivedi urged that the term 'industry' in Entry 7 of List I as well as Entry 52 of List I should be confined to the process of manufacture of the industries which are declared to be necessary for the purposes of defence or for prosecution of war. According to Mr. Dwivedi there is no necessity or compulsion to give this entry a wider meaning merely because the war situation is being dealt with in the State Entry. In such a situation Entry 33 of List III is always available to Parliament for controlling products and Article 250 gives over riding power to the Parliament to legislate with respect to any matter enumerated in the State List during the period of proclamation of emergency. Even Articles 352 to 354 also confer sufficient power on the President to declare by proclamation that a grave emergency exists which can be kept alive as long as the war situation or need of defence is required. By virtue of Article 353 the power of Parliament would extend to making of laws with respect to a matter not enumerated in the Union List, therefore the Constitution makers have well thought of and designed the Constitution in such a manner in the matter of distribution of power that there would be no difficulty at all for the Parliament to enact any law when the country is in war, and therefore, in normal times there should be no justification to give the expression 'industry' a wider meaning and thereby denuding the State Legislatures to make law on several heads of legislation enumerated in List II. According to Mr. Dwivedi, reference to Entry 5 of List I, in this context was wholly mis-conceived as that is a specific Entry in List I with regard to arms, and as such, would not be covered under Entry 27 of List II and Entry 33 of List III. Mr. Dwivedi also contended that reference to Article 254(1), in this context is mis-conceived as the said Article can be invoked both by the Parliament and the State Legislatures to make law with respect to one of the matters enumerated in the Concurrent List. The expression 'repugnant' in Article 254(1) refers to matter only in the Concurrent List, and it is in this connection, he placed reliance on the decision of this Court in the case Deep Chand (1959) Suppl.(2) SCR 8 and Hoechst Chemicals (1983) 4 SCC 45 . According to Mr. Dwivedi Federalism having been accepted as one of the basic features of our Constitution, as was held by this Court in S.R. Bommai (1994) 3 SCC 1, a construction of a particular legislative Entry which would denude another legislative body from exercising its power in respect of several heads of legislation could be held to be contrary to the basic feature of the Constitution, and therefore, the Court should avoid giving a wider meaning to the expression 'industry' Entry 7 and Entry 52 of List I as well as Entry 24 of List II. With reference to different Articles of the Constitution, Mr Dwivedi contends that the State Legislatures have exclusive power to make laws with respect to Entries in the State List and only in specified contingencies Parliament can legislate with respect to them. In this view of the matter counsel contends, entries in List I ought not to be construed very widely as construed by this Court in ITC case. The counsel says that in the State of Bihar, Market Act in relation to tobacco is relatable to Entries 26 and 27 of List II whereas Tobacco Board Act, enacted by the Parliament includes within its fold the entire process of growing, curing and marketing of tobacco and unlike the sugar industry and purchase of sugar cane by it which was dealt with by the Constitution Bench in the case of Tika Ram ji the tobacco industry cannot be split up with reference to the raw-material. According to learned counsel growing of tobacco, its curing and marketing being one integrated industrial process the same would be embedded into Tobacco Industry. The very object of the Tobacco Board Act, being to encourage export of good quality tobacco and to augment the foreign exchange reserves, the same does not seek to regulate and control the sale and purchase of tobacco in normal markets in different States. Therefore trade and commerce, production, supply and distribution of tobacco in different markets in India could not be regulated by the Tobacco Board Act. He also urged that the Act in question may not be solely to the field of Legislation in Entry 52 of List I inasmuch as foreign exchange comes within Entry 36 of List I, whereas law ensuring fair and remunerative prices for the growers and minimum prices for export of tobacco could be referable to Entry 34 of List III. This being the position, it is not possible to define the 'industry' in its widest form. Further the Tobacco Board Act being an Act to regulate the sale of tobacco at auction platform, the raw-material which is produced by the growers in so far as the growing of raw- material is concerned, the same would be the matter pertaining to exclusive domain of 'agriculture' covered by Entry 14 of List II and the Parliament cannot be permitted to encroach upon the domain of the State Legislature. The learned counsel places reliance on the decision of this Court in A.S. Krishna (1957) SCR 399. Mr. Dwivedi does not agree with the submission of the counsel appearing for the company that the tobacco industry is one comprehensive integrated industry covering within its expanse the growing of tobacco, curing, marketing and export. According to him, growing of tobacco is pure and simple agriculture and the industrial aspect begins after the industries purchase raw tobacco from the growers and begin curing the same. Consequently the Market Acts enacted by the State Legislature would be fully competent, legal and valid governing the sale and purchase of tobacco within the local market area. Referring to the provisions of the Bihar Act, the counsel urged that the same had been enacted by the State Legislature under Entry 28 of List II, the object being to provide for better regulation of buying and selling of agricultural product and the establishment of markets for agricultural produce. The comparison of the provisions of the Market Act and the Tobacco Board Act would show that both the Acts can operate, particularly when the Tobacco Board has not set up any auction platform or any kind of market centre in Bihar and in fact several relevant provisions like Section 13, 13A and 14 have not been enforced in the State of Bihar. If the provision of the Tobacco Board Act is construed in its wide meaning then the Parliament must be held to have no competence to make laws in respect of anything prior to the curing of tobacco. According to the learned counsel, when this Court in ITC case held the State Act to be invalid, it so held on the conclusion that the entire field is covered by the Central Legislation. But no steps having been taken by the Tobacco Board in the State of Bihar under Sections 8, 20 and 20A and other provisions not having been applied, it is difficult to subscribe that the entire field is covered by the Tobacco Act. Mr. Dwivedi also very seriously contended that the Parliament by enacting the law under Entry 52 of List I in relation to the Tobacco Industry and having enacted Tobacco Board Act included the provisions of Section 31, which unequivocally indicates that the Act is in addition and not in derogation of any other law for the time being in force. This being the position, the Market Act must be allowed to operate.Therefore, the Market Committee would be entitled to levy market fee on the sale and purchase of Tobacco within the market area. Reliance was placed on the decisions of this Court in M. Karunanidhi (1979) 3 SCC-431, Chanan Mal (1977) 1 SCC-340 and Ishwari Khaitan (1980) 4 SCC 136. With special reference to the majority judgment of this Court in ITC's case the counsel urged that the aforesaid decision has not noticed several decisions of this Court starting from Tikaramji, Calcutta Gas -----etc. Mr. Dwivedi also contended that, as has been held by this Court in several decisions, in the event of any conflict between the law made by the Parliament with reference to some Entry in List I and the law made by the State Legislature with reference to any Entry in List II, the Courts must try to harmonise and re-concile, which is well known method of construction. The majority view, however, did not examine the provisions of two Acts for its conclusion as to whether both Acts could be allowed to operate, whereas the judgment of Hon'ble Mukherjee, J proceeds on the basis that both the Acts could operate in its own field. According to Mr. Dwivedi, the principle of occupation of field by a particular legislature is a concept relevant for interpreting an entry in the Concurrent List and it will have no application when the legislation in question is under a particular Entry in List I. According to Mr. Dwivedi, where a particular legislation made by the Parliament is found to be occupying the entire field then the extent of occupation of the field would have to be examined with reference to Entry 33 of List III to find out which field remains available to the State Legislature, and if, there is any repugnancy then same has to be dealt with, with reference to Article 254. But the Act in question not having been made (Tobacco Board Act ) with reference to Entry 33 of List III, conclusion with reference to Article 254 was wholly erroneous. It is lastly urged, that the majority view in ITC case not having noticed the earlier Constitution Bench decisions in Tikaramji, Calcutta Gas as well as other cases following the same, the conclusion is unsustainable in law, and therefore, this Constitution Bench must hold that the ITC case has not been correctly decided. While interpreting and considering the word 'industry' occurring in different Entries of List I and List II, it would be wholly inappropriate to refer to the meaning of the word given in Encyclopaedia of Britannica, as was held by this Court in Tikaramji. It is also urged that the scope of Constitutional Entry in the 7th Schedule can never be left to be determined on a case to case basis depending upon how much field the Parliament deems fit to cover. The scope of the word 'industry' in Entry 52 of List I will not expand or restrict depending upon what the Parliament does in its legislation. The competence of Parliamentary law can never be adjudged with reference to the nature of the law which is being enacted. The scope of the Entries in List II also cannot be determined with respect to Parliamentary enactment made from time to time. On the other hand, the scope of entries have to be determined by reference to each other and by modifying one with respect to the other on the basis of the context without making any of the entries otiose. It was so held by this Court in the case of McDowell (1996) 3 SCC 709. Since a law made by a legislature, be it Parliament or be it the State, has to be tested on the anvil of the entries in the 7th Schedule of the Constitution when a question of legislative competence arises, the head of the Legislation in any entry cannot be differently construed. In other words, the word 'industry' occurring in Entry 24 of List II as well as Entry 7 and Entry 52 of List I must have the same meaning. That being the position, Parliament cannot be permitted to amend Industry Development Regulation Act by including Sugarcane, as has been held by this Court in Belsund Sugar. Mr. Dwivedi repelled the argument of Mr. Shanti Bhushan that the observations in Tikaramji must be confined to the fact from that case on the ground that, it is no doubt true, that in Tikaramji the validity of the Parliamentary enactment had not been questioned, and on the other hand, it is the power of the State Legislature to enact the Sugarcane Act, was the subject matter of consideration. But the Court did examine the provisions of the State Act to find out whether it encroached upon Entry 52 of List I as sugar industry was a controlled industry under the provisions of IDR Act, 1951. That apart, the Constitution Bench having thoroughly gone into the constitutional history including the corresponding entries in the Government of India Act, and then considering a particular provision, and ultimately holding that it would not bring within its sweep the raw-materials which is the stage prior to the manufacture of industry, it is not permissible for another Constitution Bench to by pass the earlier Constitution Bench decision by limiting the ratio therein to the fact of that case, more so when the said decision had been followed later on in several other Constitution Bench decisions and has stood the test for last two decades. With reference to Banthia's case Mr. Dwivedi contends that in the very same judgment the only question that cropped up for consideration is whether the Goldsmith's work was a handi-craft requiring application of skill and the art of making gold ornaments and was not an 'industry', within the meaning of Entry 52 of List I or Entry 33 of List III of the 7th Schedule, the Court never examined with reference to Entry 14 dealing with agricultural raw- material and in fact the Court observed that it is not necessary for the purposes of this case to attempt to define the expression 'industry' precisely or to state exhaustively all the different aspects. The Court was however, satisfied that the manufacture of gold ornaments by the Goldsmith is a process of systematic production for trade or manufacture and, would therefore fall within the connotation of the word 'industry' in the appropriate legislative entries. Thus Harakchand also follows the ratio in Tikaramji and not departed from the view taken in Tikaramji. In HR Banthia, the Supreme Court rejected the submission to adopt the definition of 'industry', as given in the Industrial Disputes Act. According to Mr. Dwivedi, the observations of this Court in Harakchand and Banthia cannot be utilised for the purposes of the agricultural raw-material and its production within the word 'industry' in Entry 52 of List I, how so ever wide the same word may be construed. With reference to the judgment of this Court in Ishwari Khaitan Mr. Dwivedi contends that the enunciation of law made therein would indicate that the Court was examining to find out by virtue of law made under Entry 52 of List I to what extent there has been denudation of the State Legislature's power to legislate under Entry 24 of List II. The Court did find that the extent of erosion is not absolute but only to the extent the control is spelled out by the parliamentary legislation. The extent of parliamentary legislation is seen only to determine how much is taken out from Entry 24 of List II and nothing more. Though in this case the Court relied upon the earlier decision of this Court in State of West Bengal vs. Union of India (1964) 1 SCC 371, but unfortunately in the West Bengal case the scope of 'industry' did not fall for consideration, and that is why even Tikaramji had not been referred to. But it cannot be concluded that the Constitution Bench was departing from Tikaramji and laying down some new principles without even discussing Tikaramji. Mr. Dwivedi submitted that in Ishwari Khaitan, no doubt the judgment of this Court in Baijnath has been relied upon but the said reference and reliance was for a different purpose and not to equate the structure of Entry 52 of List I with Entry 54 of List I. The Court referred Baijnath Kedia for the limited purpose as in both cases the denudation of States' power is only to the extent of control, while Baijnath dealtwith Entry 23 of List II, Ishwari Khaitan dealt with Entry 24 of List II. The subject matter of other entries was not in issue. It would, therefore, be a fallacy to contend that Ishwari Khaitan relied upon Baijnath Kedia to hold that the entire field is occupied by the Central Legislation though the majority view in ITC case holds so, and that must be held to be not correctly decided in view of the series of decisions starting from Tikaramji, already referred to. Mr. Dwivedi, in this connection relies upon the Constitution Bench decision in Belsund Sugar Company (1999) 9 SCC 620 wherein in paragraphs 117 and 118 the cases under Mines and Mineral Regulation and Development Act had been noticed and the Court ultimately held that this scheme of the legislative entries is entirely different from the scheme of Entry 52 of List I read with Entry 24 of List II with which the Court was concerned in Belsund Sugar. According to Mr. Dwivedi the ratio in Belsund Sugar would support the contention on the question of competence of Parliament to enact Tobacco Board Act covering the field of growing and raw-material prior to any manufacturing process. Mr. Dwivedi strongly relied upon the Full Bench decision of Allahabad High Court in SIEL's case (AIR 1996 All. 135) and submitted that the Full Bench had considered all the relevant decisions and has come to the right conclusion. According to Mr. Dwivedi, Tikaramji principles enunciated therein having been approved in the subsequent cases, and even in Ganga Sugar case Hon'ble Krishna Iyer, J. having negatived a similar contention, as was urged in the present appeal as a desperate plea and Belsund's case have approved Tikaramji, irresistible conclusion would be that the majority view in ITC judgment is incorrect and necessarily, therefore, the Parliament did not have the legislative competence while enacting the Tobacco Board Act after declaring Tobacco industry to be taken over as a controlled industry to make any provision therein relating to growing of tobacco or sale of tobacco within the market area prior to its curing or any subsequent process of manufacturing.

Dr. A.M. Singhvi, appearing for the Agricultural Produce Market Committee, Munger, on an analysis of different entries made in List I, List II and List III of the Seventh Schedule submitted that there are as many as nine entries in List II out of 66 entries which are specifically made subject to List I. 3 of the entries in List II are subject to list III. Entry 24 of list II however is subject to entry 52 of list I. According to the learned counsel, wherever the Constitution intended that the entries in list II were to be made subject to entries in list I, it was specifically and clearly so provided. Where however an entry in list II is not subject to list I or list III, then the power of the State legislature to legislate with regard to that matter is supreme. The Bihar Agriculture Markets Act, being relatable to entries 14 and 28 of list II, which is not subject to any entry either in List I or List III, the same must be held to be supreme and there would be no fetter on the power of the State Legislature to make the Agricultural Produce Markets Act. With reference to the expression "subject to List I" in McDowell's case, 1996(3) S.C.C.709, Supreme Court had itself observed that the power to make a law with respect to 'industries' lies with the States under Entry 24 of List II but the said entry is made expressly subject to the provisions of Entries 7 and 52 in List I. If the Parliament declares by law that it is expedient in the public interest to take over the control of a particular industry, then such industry gets transplanted to List I. According to the learned counsel, the industry in respect of which Parliament makes a declaration contemplated under Entry 52 of List I, the States are denuded of the power to make any law with respect to them under Entry 24 of List II. But making of a declaration by Parliament does not have the effect of transplanting the industry from the State List to the Union List. Entry 52 of List I since governs only Entry 24 of List II but not other Entry like Entry 8, as was the case for discussion in Mc.Dowell's case, the power of the State Legislature cannot be denuded to make a law referable to Entry 8. This being the correct position, as enunciated by this Court and the founding fathers of the Constitution having taken due care by expressly stating, when a particular Entry in List II is subject to an Entry in List I or List III, thereby demarcation being made, in respect of other entries in List II, the power of the State Legislature is exclusive and, therefore, it would be prohibited field for the Union to make any law. Reiterating the argument advanced by Mr. Dwivedi, Dr. Singhvi also contends that the question of occupied field is only relevant in the case of laws made with reference to entries in List III. Consequently, neither Entry 14 nor Entry 28 being subject to any of the entries in List I, the Bihar Legislature was fully competent to enact the Agriculture Produce Markets Act and once in exercise of the provisions contained in the Act, tobacco is notified to be one of the agricultural produce, then the power to levy fee for sale or purchase of tobacco within the market area cannot be whittled down by the Central Legislation. According to Dr. Singhvi, the Central Legislation to that extent must be held to be invalid. The learned counsel further urged that in case of a seeming conflict of entries of two lists, the entries should be read together without giving a narrow or restrictive sense to either of them and every attempt should be made to see whether the two entries can be reconciled or harmonized . This approach to the interpretation is necessary to uphold and promote the "Federal Structure" of the Constitution which is a basic structure, as held by this Court in S.R. Bommai vs. Union of India, 1994(3) SCC 1. The fundamental feature of federalism being that within each list each legislature is supreme. There can be no repugnancy between the matters in list I and list II and repugnancy can only be a concept peculiar to list III. It is no doubt true that Entry 52 of List I over rides only Entry 24 of List II and no other entry under List II. It has been held by this Court in Bihar Distillery, 1999(2) SCC 727 and Dalmia Industry 1994(2) SCC 583 that Trade, Commerce, production, distribution of products of alcohol industry can be regulated both by the Centre and the State. Bihar Agriculture Produce Markets Act being relatable to entry 14 and 28 of List II, that Act must operate on its own and not being affected by law made by Parliament under Entry 52 of List I. In this connection, the learned counsel refers to the Judgment of this court in Belsund 1999(9) SCC 620 para 70. According to Dr. Singhvi, the Tobacco Act by providing Section 31 indicates the intention of the Parliament that the Act would not govern the entire field in exclusion to all other Acts in existence. In this view of the matter, there cannot be any justification in denying the market Committee to levy market fee in respect of the sale and purchase of tobacco within the market area as the Market Committee Act is a duly enacted law by the State Legislature within its competence to legislate under Entry 14 and 28. Dr. Singhvi also urged that mere declaration under Entry 52 is not enough but the law in question must be found which actually occupied the field. Dr. Singhvi urged that mere existence of power is not enough but the power must be exercised and on account of such exercise, the field must be occupied so as to hold that the central law would collide with the State law. It was so held in Belsund 1999(9) SCC 620 with regard to tea. To the same effect is the ratio in the case of Western Coal Fields 1982(1) SCC 125 and Fateh Chand 1977(2) SCC 677. According to the learned counsel in the case in hand, there is no question of conflict or repugnancy between the Tobacco Act and the Bihar Act since both Acts operate in mutually exclusive and different field and therefore, the majority judgment in ITC case would not apply to the Bihar Agricultural Produce Act. Dr. Singhvi also made an extreme argument to the effect that even if the Central legislation is construed to occupy the entire field under list I, yet the State Act can still be operative and market fee could be levied by the Market Committee under the State Act for services provided by it on the principle of quid pro quo. It is in this connection, he placed reliance on the decision in Synthetics and Chemicals JT 1989(4)SC 467. According to Dr. Singhvi, the expression "industry" both under Entry 24 of List II and Entry 52 of List I would not cover subject matters which are mentioned sui generis in different entries and separately from Entry 24 of List II. If a wide meaning to the expression is given, it would run counter to the scheme of distribution of powers and the structural inter-relationship between Entry 52 of List I and Entries 24, 26 and 27 of List II and Entry 33 of List III and would make the State List redundant qua that industry. In this view of the matter, the counsel urged that the decisions relating to mines and minerals would not be relevant because of inter- relationship of Entry 23 of List II and Entry 54 of List I. Once the declaration is made by Parliament in terms of Entry 54 of List I, then both mines and its product minerals get extracted from the State list and get submerged in the Entry 54 of List I but that would not be the case when the power under Entry 52 of List I and Entry 24 of List II as well as other relevant entry in List II are considered. Consequently, the majority view in ITC case must be over-ruled.

Mr. A.K. Ganguli, the learned senior counsel, appearing for the Tamil Nadu Agricultural Marketing Board, analysed the provisions of Article 246(3) of the Constitution and contended that the expression "subject to" appearing in Article 246(3) has reference to those entries in List II which provides that the subject matter of said entries are subject to the provisions contained in certain specified entries appearing in either List I or List III as for example Entry 2 in List II provides Police (including railways and village police) subject to the provisions of Entry 2A of List I. Similar provisions are found in several entries. In List II like Entry 17, 22, 24, 26, 27, 32, 33, 37, 54, 57 and 63 but only three entries in List II namely Entries 13, 23 and 50 do not specify any entry in List I or List III subject to which the said entries would remain operative but restrict the scope of these entries by a general reference to the provisions contained in List I or List III. Therefore, in respect of all other entries in List II, the State Legislature enjoys the exclusive power to enact laws and consequently, if the State Act has been enacted under Entry 28 of List II, the State Act must be allowed to operate. The contention that Parliament enjoys superior legislative powers with regard to subject matters enumerated in List II, according to Mr. Ganguli, would hold good only in respect of those entries in List II which expressly provide that the subject matter thereof are subject to the matters dealt with in various entries in List I. But that principle cannot be extended to the subject matters covered by other entries in List II. Placing reliance on the provision of Section 100 of the Government of India Act, 1935 which corresponds to Article 246 of the Constitution which was interpreted by Sulaiman, J in Subrahmanyam Chettiyar vs. Muttuswamy Gounder, reported in 1940 FCR 188, which has been approved by the Constitution Bench in the case of KSEB vs. Indal, 1976(1) SCC 466, the counsel urged that the State Legislature enjoys exclusive legislative power under Article 246(3) to make laws with respect to the subject matter enumerated in Entry 28 of List II i.e. "Market and Fairs". This power has not been conditioned by any restrictions in so far as the distribution of legislative power between the Parliament and the State Legislature is concerned and consequently, this power cannot be curtailed or restricted by the exercise of legislative power of the Parliament with reference to any of the entries either in List I or List III. Mr. Ganguli further contends that the entry in three lists of the constitution are not powers but fields of legislation. The power to legislate is given by Article 246. The entries in different lists demarcate the area over which the appropriate legislature can operate. According to him, the concept of federal supremacy can not be invoked to deny the state legislature the power to make laws with respect to such subject matters, which are exclusively assigned to it under the State list. If a law made by the State Legislature is impugned on the ground of incompetency and on examination of the law, it is found that the law in substance is with respect to a matter in List II, then the law would be valid in its entirety. It is only in case of a seeming conflict between the law made under any of the entries in List I and II, then the principle of federal supremacy could be invoked in view of the opening words in Article 246(1). So far as the meaning of the expression "industry" in Entry 52 of List I , the counsel urged that the said word must have the same meaning as would be ascribed to the word in Entry 24 of List II. So far as the raw materials are concerned, it has been held to be goods and would fall within the subject matter comprised in Entry 27 of List II. The products of the industry would also be comprised in Entry 27 of List II except that in the case of controlled industry, they would fall under Entry 33 of List III and only the process of manufacture and production would fall under Entry 24 of List II and if the concerned industry is a declared industry, then the process of manufacture and production would fall under Entry 52 of List I. It is, therefore, logical to hold that the activities relating to production and manufacture which would otherwise come within the purview of the expression "industry" in Entry 24 of List II becomes a subject matter of legislation under Entry 52 of List I, where the industry is a declared industry. Therefore, such legislative competence of the Parliament would not confer power in relation to raw materials which may be an integral part of the industrial process and thereby denuding the State Legislature of its power to make laws with respect to subject matters covered by either entries in List II. Mr. Ganguli contends that this Court has consistently taken the view that the subject matter of Entry 52 of List I pertains to manufacture and production activities and therefore, it would not be appropriate that the word "industry" should have a wider meaning so as to include also the raw materials within the same. With reference to the decisions of this Court in relation to law made by the Parliament, regulating the Mines and Minerals Development, Mr. Ganguli contends that the subject matter of entry 54 of List I is the same as in Entry 23 of List II and Entry 23 of List II further provides that it should be further subject to the provisions of List I with respect to regulation and development under the control of the Union. In such a case, therefore, once the Parliament makes a declaration in Section 2 of the Mines and Minerals Development and Regulation Act, then all aspects of Regulations and Minerals Development even including taxes on minerals are covered by the said declaration and, therefore, the State Legislature is denuded of its power to make laws with reference to the subject matter. This has been so held in Baij Nath Kedia vs. State of Bihar , 1969 (3) SCC 838, State of Orissa vs. M.A.Tulloch 1964(4) SCR 461, India Cement vs. State of Tamil Nadu, 1990(1) SCC 12 and Orissa Cement Ltd. vs. State of Orissa & Ors., 1991 Supp.(1) SCC 430. But the subject matter of Entry 52 of List I and the subject matter comprised in Entry 2 4 of List II both relate to Industry and entry 24 of List II is subject to Entry 7 and 52 of List I. The State legislature could not have made a law in exercise of power under Entry 24 of List II so as to make other entries redundant. According to Mr. Ganguli, the expression "Industry" cannot have a wider meaning. On the question of repugnancy, Mr. Ganguli contends that the said question arises only when both legislatures are competent to enact the respective laws and the two laws cover the same field. If the two laws are found to be operating in the same field and are also found to be inconsistent with each other, only then the law made by the Parliament would prevail. But that would apply only when the law made by the Parliament and State Legislature are both in respect of the same subject matter, enumerated in the concurrent list, as was held in Hoechest Pharmaceuticals 1983(4) SCC 45. Even in Deep Chand's case the two sets of laws made by the State Legislature and the Parliament with respect to the same subject matter enumerated in Entry 35 of List III, was under consideration and the Court was examining the question of repugnancy. But that will have no application to the question involved in the present case inasmuch as the State Act falls within the subject matter comprised under Entry 28 of List II in respect of which the State Legislature enjoys the exclusive power to make laws. On an analysis of the provisions of Tobacco Board Act and Section 31 thereof, Mr. Ganguli contends that the provisions of Tobacco Act would operate only in addition to other laws and, therefore that Act cannot be pressed into service to give an over-riding effect over other legislation including the Agricultural Produce Markets Act, which has been enacted by the competent State Legislature. According to the learned counsel the two Act over-lap only as regards sale and purchase of Tobacco within the notified area and if auction platform registered with Board are held within the market area, then the so called conflict in the two Acts can be easily avoided and both Acts would be allowed to operate. While Market Committee would be entitled to levy fees in respect of sale and purchase of tobacco in the market area for the services rendered including the entire infrastructure, the tobacco Board Act can yet levy fee as provided under Tobacco Board Act, which would be a separate fee for special services rendered by it, as determined by the Central Government under Section 14A and according to the learned counsel, this is the only harmonious construction which should be and ought to be made of the two provisions. According to Mr. Ganguli, the majority decisions in ITC case are in conflict with Tika Ram vs. State of U.P.1956 SCR 393, Calcutta Gas 1962 Supp. SCR 1, Kannan Devan Hills, 1972(2) SCC 218, Ganga Sugar 1980(1) SCC 223, B. Viswanathan 1991(3 ) SCC 358, and therefore, the said decisions must be held to be erroneous. In fact the minority view expressed by Justice Mukherjee, looking at the object of two Act, allowing both the Act to operate in their respective fields should be upheld. Mr. Ganguli contended that though the competence of the Parliament to make Tobacco Board Act covering the field exclusively within the competence of the State Legislature, had not been assailed in any of these writ petitions, but in view of the nature of controversy that has arisen and the arguments advanced in the case leaves no room for doubt that each of the parties including the Central Government as well as the Tobacco Board had the opportunity of placing its case and, therefore there should be no fetter on the power of the Court to decide the legislative competence of the Parliament in the case in hand.

Mr. Malhotra, the learned senior counsel, appearing for the Tobacco Board though initially proceeded with the arguments that both Acts could be reconciled but later on categorically submitted that the Central Legislation must prevail. According to him the Tobacco Industry got lifted from Entry 24 of List II to Entry 52 of List I and the same must be held to be a special Act dealing with tobacco industry right from the stage of growing till it is exported. This being a special Act and the Market and Fairs under Entry 28 being a general entry and Agriculture under Entry 14 of List II being a general entry, the special Act enacted by the parliament must prevail and there is no question of lack of competence of the Parliament to enact the law. In support of this contention reliance was placed on the Constitution Bench decision of this Curt in Belsund Sugar Company Limited 1999(9) SCC 620. Mr. Malhotra relied upon several decisions of the Federal Court and this Court and contended that entries in the schedule must be given its widest meaning and it would not be a correct approach to give a restricted meaning to the subject matter of legislation described in an Entry. In support of this contention, he placed reliance on the decision of the Federal Court in The United Provinces vs. Mst. Atiqa Begum & Ors. - 1940(2) Federal Court Reports 110, The First Additional Income- Tax Officer, Mysore vs. H.N.S. Iyengar -1962 Supp. SCR 1, Chaturbhai M. Patel vs. The Union of India & Ors. 1960(2) SCR 362, Navinchandra Mafatlal vs. The Commissioner of Income Tax, Bombay City - 1955(1) SCR 829 and Zaverbhai Amaidas vs. The State of Bombay