Judgment

M. HIDAYATULLAH, J. : This appeal was preferred by the State of Ajmer, but after the reorganisation of States, the State of Rajasthan stands substituted for the former State. It was filed against the decision of the Judicial Commissioner of Ajmer, who certified the case as fit for appeal to this Court under Art. 132 of the Constitution.

2. The Ajmer Legislative Assembly enacted the Ajmer (Sound Amplifiers Control) Act, 1952 (Ajmer III of 1952) (hereinafter called the Act) which receive the assent of the President on March 9, 1953. This Act was successfully impugned by the respondents before the learned Judicial Commissioner, who held that it was in excess of the powers conferred on the State Legislature under S. 21 of the Government of Part C States Act, 1951(49 of 1951), and therefore ultra vires the State Legislature.

3. The respondents (who were absent at the hearing) were prosecuted under S. 3 of the Act for breach of the first two conditions of the permit granted to the first respondent to use sound amplifiers on May 15 and 16, 1954. These amplifiers, it was alleged against them, were so tuned as to be audible beyond 30 yeas (condition No. 1) and were placed at a height of more than 6 feet from the ground (condition No.2). The second respondent was at the time of the breach, operating the sound amplifiers for the Sammelan, for which permission was obtained.

4. On a reference under S. 432 of the Code of Criminal Procedure, the Judicial, Commissioner of Ajmer held that the pith and substance of the Act fell within Entry No. 31 of the Union List and not within Entry No. 6 of the State List as was claimed by the State.

5. Under Art. 246(4) of the Constitution, Parliament had power to make laws for any part of the territory of India not included in Part A or B of the First Schedule, notwithstanding that such matter was a matter enumerated in the State List. Section 21 of the Government of Part C States Act (49 of 1951, enacted;

"(1) Subject to the provisions of this Act, the Legislative Assembly of a State, may undertake laws for the whole or any part of the State with respect to any of the matters enumerated in the State List or in the Concurrent List,

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(2) Nothing in sub-section (1) shall derogate from the power conferred on Parliament by the Constitution to make laws with respect to any matter for a State or any, part thereof."

6. Under these provisions, the legislative competence of the State Legislature was confined to the two Lists other than the Union List. If, therefore, the subject-matter of the Act falls substantially within an Entry in the Union List, the Act must be declared to be unconstitutional, but it is otherwise, if it falls substantially within the other two Lists, since prima facie there is no question of repugnancy to a Central statute or of an "occupied field."

7. The rival Entries considered by the Judicial Commissioner read as follows-

Entry No. 31 of the Union List. Post and Telegraphs; Telephones, wireless, broadcasting and other like forms of communication.

Entry No. 6 of the State List. Public health and sanitation; hospitals and dispensaries.

The attention of the learned Judicial Commissioner was apparently not drawn to Entry No. I of the State List, which is to the following effect:

Entry No. 1 of the State List. Public order (but not including the use of naval, military or air forces of the Union in aid of civil power.)

Shri H. J. Umrigar relied upon the last Entry either alone, or in combination with Entry No. 6 of the State Lists and we are of opinion that he was entitled to do so.

8. After the dictum of Lord Selborne in Queen -Empress v. Burah, (1878) 3 AC 889 oft-quoted and applied, it must be held as settled that the legislatures in our Country possess pleanary powers of legislation. This is so even after the division of legislative powers, subject to this that the supremacy of the legislatures is confined to the topics menti