K.K. Mathew, J.

1. The petitioner is a company incorporated under the Companies Act with its registered office in Calcutta. The petitioner has established a factory near Alwaye within the Kerala State for production of Aluminium and Aluminium products. The electrical energy required for the purpose is being supplied by the Kerala State Electricity Board, the 2nd respondent. The petitioner had entered into agreement with Travancore - Cochin State, the predecessor in interest of 2nd respondent, as regards the price to be charged for the electrical energy to be supplied to it.

2. The Government of Kerala ,in the exercise of their power under S.2 of the Kerala Essential Articles Control (Temporary Powers) Act, 1961 (Act 3 of 1962), hereinafter referred to as the Kerala Act, declared by a notified order, Ext. P5, that electricity is an essential article, and by their Order, Ext. P1, dated 1.6.1968 passed under S.3 of the Kerala Act directed the 2nd respondent to levy a surcharge on the supply of electrical energy directly or through licensees. Clause (6) of Ext. P1 order provides that it shall not be lawful for the Kerala State Electricity Board or for the licensees receiving bulk supply from the Kerala State Electricity 8 Board to supply energy for a price which does not include the surcharge leviable by or under the order.

3. The petitioner has been asked to pay surcharge in accordance with the provisions in Ext. P-1, by Exs. P2 (a), P2(b), P2(c), P4 (a), P4 (b), and P4 (c) notices.

4. The petitioner prays for quashing Exts. P1 and P5 orders and the notices of demand by the issue of an appropriate writ, or order.

5. The petitioner contended that the Electricity (Supply) Act, 1948 (Act 54 of 1948) was passed by the Federal Legislature in the exercise of their power under Entry 33 in List 1 of the Seventh Schedule to the Government of India Act, corresponding to Entry 44 in list I of the Seventh Schedule to the Constitution, and that the State Legislature by enacting the Kerala Act cannot enable the Government to pass Ext. P1 order and interfere with the discretionary power of the Kerala State Electricity Board under S.49 of the Electricity (Supply) Act to fix the price of electricity by obliging the Board to levy a surcharge.

6. To appreciate this argument, it is necessary to consider the contention of the petitioner that the Electricity (Supply) Act, 1948 was passed by the Federal Legislature by virtue of Entry 33 in list I of the Seventh Schedule to the Government of India Act. If, in pith and substance, the provisions of that Act relate to "incorporation, regulation and winding up of trading corporations", then, the Act is one passed by virtue of the power conferred by that Entry notwithstanding that some of its provisions incidentally encroach upon any subject in list II or III (See the decision in In re C. P. Motor Spirit Act) (AIR 1939 FC 1 ). In ascertaining the true nature and character of an Act, the preamble though relevant, is not conclusive. (See Rex v. Basudeva) (AIR 1950 FC 67) The purpose or object of the legislation, as distinguished from its indirect effect, should be ascertained. (See Attorney General for Saskatchewan v Attorney General for Canada (1949 AC 110), and Lefroy's Treatise on Canadian Constitutional Law, Page 98). It is the object from the point of view of the legislator that should be considered. The Word 'object' is used subjectively of the legislator rather than objectively of the matter legislated upon. (See Kishori Shetty v. The King (AIR 1950 FC 69). The nature of the subject matter is important to decide whether the alleged encroachment is incidental or not. The extent of the invasion into the subjects enumerated in another list has to be considered. That is important not because the validity of an Act can be determined by discriminating between degrees of invasions, but for the purpose of determining what is the pith and substance of the Act. (See Prafulla Kumar v. Bank of Commerce Ltd., Khul