The distinction between making the law and the commencement of the law is crucial in determining the applicability of the principle of repugnancy between State and Central Acts.

ORDER :

1. We have heard the learned counsel for the parties for some time.

2. In the instant case, we are concerned with an amendment introduced by the Kerala Legislature by the Kerala Finance Act, 2002 incorporating in the Kerala Chitties Act, 1975 (Kerala Act 23 of 1975), Section 4(l)(a) which is as follows:

"4. (1)(a) Where a chitties is registered outside the State and twenty percent or more of the subscribers are persons normally residing in the State, the foreman of the chitty shall open a branch in the State and obtain sanction and registration under the provisions of this Act."

3. The said amendment was challenged by the respondents herein and one of the grounds urged on their behalf was that the provisions of the Kerala Act were inconsistent with the provisions of a Central Act enacted by Parliament, namely, the Chit Funds Act, 1982. It is admitted before us that under Section 1(3) of the said Act, the Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different States. It is also not disputed before us that the notification under Section 1(3) of the Act has not been issued so far by the Central Government. Hence, the Central Act has not come into force in the State of Kerala.

4. Section 90 of the Central Act which deals with repeal and savings expressly repeals the Kerala Chitties Act, 1975 (Kerala Act 23 of 1975) subject to the provisions of Section 6 of the General Clauses Act, 1897. The learned Single Judge as well as the Division Bench Mar Appraem Kuri Co. Ltd. v. Union of India, Writ Appeal No. 551 of 2004, decided on 31.5.2005(Ker) of the Kerala High Court, in the instant case, have taken the view that the question of repugnancy between the Central Act and the State Act does not arise, since the Central Act has not been brought into force in the State of Kerala, and if and when it is brought into force, by reason of Section 90 of the Act, the Kerala Act shall stand repealed. It is, therefore, not within the contemplation of the Central Act that the State and the Central Act shall operate at the same time. Till such time, as the Central Act is not brought into force in the State of Kerala, the State Act will operate and when the Central Government issues a notification bringing into force the Central Act in the State of Kerala, the Central Act shall prevail and the State Act shall stand repealed.

5. Mr C.S. Vaidyanathan, learned Senior Counsel appearing on behalf of some of the respondents, however, has brought to our notice a decision of this Court rendered by a Bench of three Hon'ble Judges in Pt. Rishikesh v. Salma Begum (1995) 4 SCC 718, wherein this Court dealing with the amendments to the Civil Procedure Code, held as follows: (SCC pp. 728-30, paras 17-18)

"17. Section 97(1), with a marginal note 'repeal and savings', envisages that any amendment made or any provision incorporated in the principal Act by a State Legislature or a High Court before the commencement of the Central Act shall, except insofar as amendment or provision is consistent with the provisions of the principal Act as amended by the Central Act, stand repealed. The emphasis as rightly stressed by Shri Parag is 'any amendment to Civil Procedure Code made by the State Legislature or a provision by the High Court' before the 'commencement' of this Act stood repealed. It is to be noted here that the Central Act is an amending Act, not a repealing and consolidating statute to supplant the principal Act, namely, Act 5 of 1908. Since Civil Procedure Code is a concurrent subject, Parliament and the legislature of a State or a High Court in respect of orders in the Schedule are competent to enact or amend Civil Procedure Code respectively. In fact several local amendments made to Civil Procedure Code before the commencement of the Central Act do exist. Pursuant to the recommendation made by the Law Commission of India to shorten the litigati