Doctrine of Occupied Field

Doctrine of Occupied Field,there is a very thin of line of difference between doctrine of

Repugnancy and Doctrine of Occupied Field. As we know that repugnance arises only
if there is an actual conflict between two legislations, one enacted by the State
Legislature and the other by Parliament, both of which were competent to do so.

On the other hand, doctrine of Occupied Field simply refers to those legislative entries
of State List, which are expressly made ‘subject’ to a corresponding Entry in either the
Union List or the Concurrent List.
Doctrine of Occupied Field has nothing to do with the conflict of laws between the state
and the centre. It is merely concerned with the ‘existence of legislative power’
whereas repugnance is concerned with the ‘exercise of legislative power’ that is
shown to exist.

Doctrine of Occupied Field comes into picture even before the Union Law or the State
Law has commenced. Under Article 254, as soon as a Union law receives assent of the
President, it is said to be ‘a law made by the Parliament’. Actual commencement of
the law is not important for the purpose of attracting doctrine of Occupied Field.

The Curious Case of State of Kerala v. Mar Appraem Kuri

Let us understand this doctrine with the help of a famous case. In the case of State of
Kerala & Ors v. M/S. Mar Appraem Kuri Co.Ltd. & Anr.[1], the Centre enacted
the Chit Funds Act (Central Act). For the Law to become operative in any state, the
Central Government would have to issue a notification under Section 3 of the Central
Act. In the meantime, the State of Kerala enacted a separate act on ‘Chit Funds’ called as
Kerala Chitties Act. However, the Central Act did not get notified in Kerala resulting into
a situation wherein there was only one Act in force in the State of Kerala i.e. the Kerala
Chitties Act. It was contended that the Kerala Chitties Act was repugnant to the un-
Notified Central Act. The Supreme Court held that even an un-notified
Central law attracts art 254.
The reasoning given by the Supreme Court was that the Central Enactment covered the
entire ‘field’ of ‘Chit Funds’ under the Concurrent List. Even though the Central Chit
Funds Act was not brought in force in the State of Kerala, it is still a law ‘made’, which
is alive as an existing law.

The Court emphasized that Article 254 uses the verb ‘made’ and the ‘making’. Thus,
the ‘making’ of a law is complete, even before that law is notified. The court also said
that:

“The verb ‘make’ or the verb ‘made’ is equivalent to the expression ‘to legislate’. The
importance of this discussion is to show that the Constitution framers have
deliberately used the word ‘made’ or ‘make’ in the above Articles.

Our Constitution gives supremacy to the Parliament in the matter of making of the
laws or legislating with respect to matters delineated in the three Lists. The principle
of supremacy of the Parliament, the distribution of legislative powers, the principle of
exhaustive enumeration of matters in the three Lists are all to be seen in the
context of making of laws and not in the context of commencement of the
laws.”

Thus, the State Legislature is denuded of Legislative Competence as soon as the

Parliament, by enacting the Central Act, intended to occupy the entire field of ‘Chit
Funds’ under the Concurrent List.

Last Word

1. We can easily see that the line of difference between Repugnance and Occupied Field
is very thin. Where Occupied Fields ends, repugnancy starts. Parliament is indeed the
supreme Law-Making body under our Constitutional Scheme. Normally, the Courts try
to construe a Central Law and a State Law harmoniously. However, when the
Parliament tries to occupy the field of the State Law, it is the Central Law that is to
prevail.
2. The question of repugnance is separate one. Whether the whole State law or only a
particular provision is repugnant to the Central Law is a question that is to be decided
after deciding whether the Parliament has really occupied the field of the State Law.

3. Once it is made sure that the Parliament intends to legislate over a particular field on
which the State has already legislated, the repugnancy kicks in. To what extent is the
repugnancy is a subjective question.

4. The intention of the Parliament can be either express or implied. Express intention
can be shown explicitly by enacting a Central Law to repeal a State Law. Implied
Intention is slightly more convoluted. Implied Intention can be shown by enacting a
Central Law on a subject on which the State has already legislated. By enacting such a
Central Legislation, it will be implied that the Parliament intends to occupy a
particular field and strip the State Legislature of its power to legislate in this respect.

There is anther example of doctrine of occupied field. In another case regarding

prohibition on manufacture and sale on Gutka (Pan Masala with chewing tobacco),
under Prevention of Food Adulteration Act, it was contended that Cigarettes and Other
Tobacco Products (Prohibition of Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution) Act, 2003, (Act 34 of 2003), referable
to entry 52, List I and entry 18, List III to the Seventh Schedule of the Constitution of
India, occupies the entire field in relation to tobacco. Therefore the State Government
could not do indirectly what it can not do directly. Supreme Court of India accepted the
proposition and quashed the notification under PFA Act. It observed:

The provisions of the Cigarettes and Other Tobacco Products (Prohibition of

Advertisement and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003 are directly in conflict with the provisions of Section 7(iv) of the
Prevention of Food Adulteration Act, 1954. The former Act is a special Act intended to
deal with tobacco and tobacco products particularly, while the latter enactment is a
general enactment. Thus, the Act 34 of 2003 being a special Act, and of later origin,
overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act,
1954 with regard to the power to prohibit the sale or manufacture of tobacco products
which are listed in the Schedule to the Act 34 of 2003. (See Godavat Pan Masala v.
Union of India; link: http://indiankanoon.org/doc/1706364/)

1999 S C M R 1477

SHAMAS TEXTILE MILLS LTD

versus

THE PROVINCE OF PUNJAB

“20. Moreover, there is no dearth of authority for the proposition that the doctrine of
occupied field is concomitant of the larger doctrine of pith and substance and
incidental encroachment under the doctrine of pith and substance with all its
concomitants, postulates for its applicability on a competition between Federal
legislation and Provincial legislation and it would be erroneous to invoke the doctrine
where there is no such competition, merely because a Provincial law conflicts with
another law which has not been passed by the Federal Legislature but deals with a
matter in the Federal List. Similar is the case where a Federal statute provides the
Provincial Government may extend the operation of a law to any part of the Province
and the legislation is brought into operation by the Provincial Government, the law
does not lose its Federal character and does not become invalid when it comes into
conflict with another Federal Law. See Sayyid Abul A'la Maudoodi and others v. The
Government of West Pakistan and others (PLD 1964 SC 673) and Tamizuddin Ahmed
v. The Government of East Pakistan (PLD 1964 Dacca 795). It may also be added that
Article 143 (ibid) does not apply to the resolution of inconsistency between two
"existing laws", in that it applies only when their is a conflict between a Federal law
passed under the Constitution and an existing law, -whether Provincial or Federal. In
such a case, if the Federal law is passed with respect to a matter in the Federal List or
Concurrent List, it would be intra vires the Federal Legislature and as regards the
question of its repugnancy to an "existing law", the Federal law would prevail on the
principle of repeal by implication which rests on the principle that if the subject-matter
of the latter legislation is identical with that of the earlier one, then, the earlier law
stands repeated by the latter enactment. Viewed in this perspective, their is no force in
the arguments advanced by the learned counsel for the appellants that under Section 8
of 1989 Act they are not bound to contribute by treating their special allowance of
Rs.450 as part of the wages of the employees working with the appellants-
organizations.”