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Gujarat High Court · body

2023 DIGILAW 380 (GUJ)

DEVRAJBHAI VALABHAI CHARAN v. STATE OF GUJARAT

2023-02-24

SONIA GOKANI

body2023
JUDGMENT : SONIA GOKANI, J. 1. This is a petition preferred by the resident of Pavagadh having the property at Pavagadh. There is one Shri Pavagadh Digambar Jain Siddh Kothi and the said Trust is registered under the Bombay Public Trusts Act. 2. The Gujarat Legislative Assembly passed Gujarat Ancient Monuments and Archaeological Sites and Remains Act, 1965 (hereinafter referred to as ‘the Act’) which came into force on 15.12.1967. Section 3 of the said act provides for certain ancient and historical monument to be protected monument. Power of the State Government is to declare the ancient and historic monument to be protected monument as per Section 4 of the Act. Section 5 of the Act provides for acquisition of rights in a protected monument and Section 20 of the Act gives power to the State Government to declare archaeological sites and remains to be protected areas. 3. The petitioners submit before this Court that the Heritage Act, 2006 has been enacted for making provision for constituting and establishing an authority to manage and ensure integrated conservation of heritage and natural environs, preservation of historical and cultural identity and also for preventing uncontrolled development and the commercial exploitation of the Champaner-Pavagadh Archaeological Park and for matters concerning thereto. 3.1. It is also submitted that an international convention in 1972 under the aegis of United Nations Educational, Scientific and Cultural Organization (UNESCO) had called the convention named World Heritage Convention to encourage the identification, protection and preservation of cultural and natural heritage around the world, considered to be the outstanding value to the humanity which was embodied in an international treaty called the Convention concerning the Protection of World Cultural and Natural Heritage and it was adopted by UNESCO In 1972. 3.2. The natural heritage refers to the outstanding physical, biological and geological formations, habitats of threatened species of animals and plants and areas with scientific, conservation or aesthetic value. It has further prescribed the criteria for the selection. So far as Cultural Heritage is concerned, the criterion prescribed are as follows: (i) represent a masterpiece of human creative genius. (ii) exhibit an important interchange of human values over a span of time or within the cultural area of the world on developments in architecture or technology, monumental arts, town planning or landscape design. So far as Cultural Heritage is concerned, the criterion prescribed are as follows: (i) represent a masterpiece of human creative genius. (ii) exhibit an important interchange of human values over a span of time or within the cultural area of the world on developments in architecture or technology, monumental arts, town planning or landscape design. (iii) bear a unique or at least exceptional testimony to a cultural tradition or to a civilization which is living or has disappeared. (iv) be an outstanding example of type of building or architectural or technological ensemble, or landscape which illustrates a significant stage or significant stages in human history. (v) be an outstanding example of traditional human settlement or land-use which is representative of culture or cultures, especially when it has become vulnerable under the impact of irreversible change. (vi) be directly or tangibly associated with events or living traditions, with ideas or with beliefs, or with artistic and literary works of outstanding universal significance (a criterion used only in exceptional circumstances and together with other criteria). 3.3. The World Heritage Committee which had met in between 28.06.2004 to 07.07.2004 and had considered in their publication “World Heritage” and a draft decision was taken with respect to Champaner-Pavagadh Archaeological Park on the basis of criterion (iii), (v) and (vi) above. 3.4. The petitioners submit that even after the Heritage Act, 2006 has come into force, the respondent no. 2 issued notices to the petitioners. It is urged that neither the respondent no. 2-Superintending Archaeologist nor Senior Conservation Assistant has any power or jurisdiction with respect to the scheme for which notices have been issued. 3.5. It is further their say that provisions of Article 254 of the Constitution of India provides that in case of any inconsistency between the laws made by Legislature of the State and the laws made by the Parliament, the laws made by the Parliament shall prevail. To the extent of repugnancy between the Central Legislation and the State Legislation, the State Legislation shall give way. 3.6. To the extent of repugnancy between the Central Legislation and the State Legislation, the State Legislation shall give way. 3.6. The petitioner is therefore before this Court with the following prayers: “(A) That the Honourable Court may be pleased to issue a writ declaring that the provisions of Heritage Act, 2006 to the extent they are insistent and/or repugnant to the earlier as a whole would not enforceable and/or can not be said to be in existence in the eye of law on the basis of principle of ‘occupied field’ or on the principle of ‘implied repeal' to the extent of inconsistency and repugnancy, the Union law would prevail and so far as the State is concerned, a special law shall prevail over the general law. (B) That the Honourable Court may be pleased to issue a writ of mandamus or any other writ, direction and order quashing and setting aside the constitution of “Champaner-Pavagadh Archaeological Park World Heritage Area Management Authority Act, 2006” (“Heritage Act, 2006” for short). (C) That the Honourable Court may be pleased to issue a writ of mandamus and or any other writ, direction and/or order quashing and setting aside the impugned notices- annexures “A” and “B” under the provisions of “Champaner-Pavagadh Archaeological Park World Heritage Area Management Authority Act, 2006” (“Heritage Act, 2006” for short). (D) That the Honourable Court may be pleased to issue a writ of prohibition or any other writ, direction directing the respondents, their servants and or agents not to initiate any action in any manner or initiate any proceedings in any manner in furtherance to the notices- annexures “A” and “B” under the provisions of “Champaner-Pavagadh Archaeological Park World Heritage Area Management Authority Act, 2006” (“Heritage Act, 2006” for short) pending hearing and final disposal of the present petition. (E) That the Honourable Court may be pleased to grant any such other and further reliefs deemed fit and expedient in the interest of justice. (F) That the Honourable Court may be pleased to award the costs of this petition.” 4. The affidavit-in-reply is filed by the respondent nos. 2 and 3. The Deputy Superintending Archaeological Engineer, Archaeological Survey of India, Vadodara Circle has been conversant with the facts of the case and is authorized and competent to file the affidavit. According to him, all averments and allegations are to be denied. 4.1. The affidavit-in-reply is filed by the respondent nos. 2 and 3. The Deputy Superintending Archaeological Engineer, Archaeological Survey of India, Vadodara Circle has been conversant with the facts of the case and is authorized and competent to file the affidavit. According to him, all averments and allegations are to be denied. 4.1. The Parliament initiated the Ancient Monuments and Archaeological Sites and Remains Act, 1958. Section 2A reads thus: 2(a): Ancient Monument means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock sculpture, inscription or monolith, which is of historical, archaeological or artistic interest and which has been in existing for not less than 100 years, and includes: (i) the remains of an ancient monuments. (ii) the site of an ancient monument. (iii) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument. (iv) the means of access to, and convenient inspection of an ancient monument. 2(f) “maintain” with its grammatical variations and cognate expressions, includes the fencing, covering in, repairing, restoring and cleansing of a protected monument, and the doing of any act which may be necessary for the purpose of preserving a protected monument or of securing convenient access thereto. 2(j) “protected monument” means an ancient monument which is declared to be of national importance by or under this Act. 4.2. The ancient monument as per Section 2(1) of the Ancient Monuments Preservation Act is as follows: “ancient monument” means any structure, erection or monument, or any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artistic interest, or any remains thereof, and includes: (a) the site of an ancient monument. (b) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument. (c) the means of access to and convenient inspection of an ancient monument.” 4.3. The mining activities or construction near the prohibited or regulated area can be undertaken only through license. (b) such portion of land adjoining the site of an ancient monument as may be required for fencing or covering in or otherwise preserving such monument. (c) the means of access to and convenient inspection of an ancient monument.” 4.3. The mining activities or construction near the prohibited or regulated area can be undertaken only through license. As per Rule 38 of the Ancient Monuments and Archaeological Sites and Remains Rules, 1959 (hereinafter referred to as ‘the Rule’) which stands for Removal of unauthorized building, the Central Government can direct the owner or occupier of an authorized building in a prohibited or regulated area to remove such building or part thereof. 4.4. As per sub-rule (1) of Rule 38 of the Rules, the Central Government has power to issue notices to the owner of or occupier of authorized construction. 4.5. In case of any inconsistency between the laws made by the State and those of the Unions, the laws made the Union would have a prevalence. Therefore, the respondent nos. 2 and 3 has jurisdiction to issue the show cause notice to the petitioners. Accordingly, the notices were issued to them which are just and proper as they have violated the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and the Rules thereto. 5. The affidavit-in-reply by the Under Secretary, Sports Youth and Cultural Activities Department, Gandhinagar also has been filed along the same line where it is stated that the petitioner had prayed for a direction declaring a provision of Heritage Act, 2006 to be inconsistent with the provision of Union law and thereby sought a direction that the provision of Union law would prevail over the State law. The petition is devoid of any substance. Before dealing with averments, it referred to the object of Heritage Act since it is an Act enacted to provide for constituting and establishing an authority to manage and ensure integrated conservation of heritage and natural environment, preservation of historical and cultural identity and also for preventing uncontrolled development and commercial exploitation of the Champaner-Pavagadh Archaeological Park and for the matters connected therewith and incidental thereto. It also defines core area zone, buffer zone, heritage area, etc. 5.1. It is the say of this respondent that the heritage areas specified under the Act of 2006 does not include the protected area. It also defines core area zone, buffer zone, heritage area, etc. 5.1. It is the say of this respondent that the heritage areas specified under the Act of 2006 does not include the protected area. The contention of the petitioner that the provision of 2006 are inconsistent with the provision of 1958, is misconceived. The provisions of the Act 1958 would prevail over the provision of the Act of 2006 is the say of the petitioner however, it has not been stated as to how there is directed conflict between the provision of the State and provision of Union law. The Act of 2006 has been enacted in view of entry no. 12 of list-II and entry no. 40 of list-III of 7th Schedule of Constitution of India. In view of this, there is no overlapping in the matter of enactment in respect of Ancient Monuments and Archaeological Sites. The area is not fully occupied by the Union law. The State Government is competent to legislate the in respect of entries specified under list II and III of the 7th Schedule of the Constitution of India. The provisions of the State law are not repugnant. 6. The Supreme Court in case of Government of A.P. and Another vs. J.B. Educational Society and Another, (2005) 3 SCC 212 in case of repugnancy between the Central and the State Act has held that doctrine of ‘Harmonious Construction” would come into play. Besides this, conflict of repugnancy should be direct and not capable of being obeyed without disobeying the same. 6.1. In case of M. Karunanidhi vs. Union of India, (1979) 3 SCC 431 the Apex Court has set out condition to be fulfilled before holding about the repugnancy between the Central Act and the State Act. None of the conditions set out by the Apex Court is satisfied in the instant case. The language of Article 254 is abundantly clear and leaves no room of any doubt. The Article gives supremacy to the law made by the Parliament which the Parliament is competent to enact, but, the same does not restrict the power of the State Government to legislate in respect of the matters specified under list II and III of the 7th Schedule of the Constitution. 6.2. The Article gives supremacy to the law made by the Parliament which the Parliament is competent to enact, but, the same does not restrict the power of the State Government to legislate in respect of the matters specified under list II and III of the 7th Schedule of the Constitution. 6.2. In view of the doctrine of “Pith and Substance”, there is no direct repugnancy between the State and the Union Act and hence, it is urged that the petition be dismissed. 7. The affidavit-in-rejoinder has been filed urging that under the signature of Executive Magistrate and Mamlatdar, Halol as also Taluka Development Officer Halol and Gram Panchayat, Champaner public notice had been distributed on 29.08.2009 purporting to exercise the powers under Heritage Act. The large number of properties had, in fact, was demolished even without issuance of notices to the concerned owner/occupiers and therefore, it is questioned and challenged. 8. This Court has heard both the sides. The petitioner no. 1 is a permanent resident of Pavagadh and is having old residential house in Pavagadh, the respondent no. 2 is a resident having property in Pavagadh and respondent no. 3 originally belongs to Pavagadh. The Pavahadh Digambar Jain Siddh Kothi and the Trust is registered under the Bombay Public Trust Act. The petitioner no. 1 is one of the trustees. The petitioner no. 4 is a managing trustee of Kansara Dharmashala registered under the Bombay Public Trust Act. 8.1. The Gujarat Legislative Assembly passed Gujarat Ancient and Monuments Archaeological Sites and Remains Act, 1965 which came into force on 15.12.1967. It is the State Law. The Gujarat Legislative Assembly passed the Act called Champaner-Pavagadh Archaeological Park World Heritage Area Management Authority Act, 2006 for constituting and establishing an authority to manage and ensure integrated conservation of heritage and natural environs, preservation of historical and cultural identity and also for preventing uncontrolled development of commercial exploitation of the Champaner-Pavagadh Archaeological Park and for matters connected therewith. 8.2. Even after Heritage Act came into force, the Superintending Archaeological- respondent no. 2 issued the notice on 07.05.2007 to the petitioner no. 1-Devrajbhai Valabhai Charan, petitioner no. 2-Navrath Sinh Deep Sinh Baria on 12.06.2007 and Senior Conservation Assistant, Pavadagh also issued notice to the petitioner no. 2. Similar notice had been issued to Smt. Madhuben Tinabai Nayak on 04.10.2007 and to Bharti Cellular Limited on 24.03.2007. 8.3. 2 issued the notice on 07.05.2007 to the petitioner no. 1-Devrajbhai Valabhai Charan, petitioner no. 2-Navrath Sinh Deep Sinh Baria on 12.06.2007 and Senior Conservation Assistant, Pavadagh also issued notice to the petitioner no. 2. Similar notice had been issued to Smt. Madhuben Tinabai Nayak on 04.10.2007 and to Bharti Cellular Limited on 24.03.2007. 8.3. Their urge is to declare that the provision of the Heritage Act, 2006 to the extent they are insistent and/or repugnant to the earlier as a whole would not be enforceable and/or cannot be said to be in existence in the eye of law on the basis of basic principle of “occupied filed” or on the basis of principle of “implied repeal” to the extent of inconsistency and repugnancy and that the Union law would prevail over the State law and a special law would prevail over a general law and hence, issue a writ of prohibition or any other writ, direction directing the respondents not to initiate actions in any manner or initiate any proceedings in furtherance of the notices. 8.4. The action, according to the petitioner, ought to be by the Committee of 2006 Act. Permission to be obtained under 2006 Act. The sub-clause (2) of Article 254 of the Constitution of India is pressed into service to urge that State would not have the authority. 8.5. Learned Senior Advocate Mr. Dhaval Vyas has also pressed into service the decision of State of Orissa and Others vs. M/s Mesco Steels Ltd. and Another, (2013) 4 SCC 340 where the writ petitioner was seeking interference at pre-decisional stage with provisional decision which constituted only a step-in process of taking final decision by the authority concerned, which was held to be pre-matured. The High Court had directed the maintenance of status quo in writ petition filed by the respondent against the provisional decision of the Government regarding reduction of mining lease areas. The Government issued notice calling upon it to show cause why excess lease area should not be deducted from total lease. The High Court ignoring the show cause notice on the ground that the same had been issued in teeth of status quo order and taking view that government appeared to have taken final decision on reduction of lease area, held the decision to be unjustified. The High Court ignoring the show cause notice on the ground that the same had been issued in teeth of status quo order and taking view that government appeared to have taken final decision on reduction of lease area, held the decision to be unjustified. The Court held that the High Court should have directed the writ petitioner to respond to the show cause notice and dispose of writ petition reserving liberty to take recourse to suitable remedy depending upon the final order of the Government. The Government should take final decision and pass a reasoned order after considering the contention of the parties. 9. Noticing the fact that the notices have been issued to the parties concerned, these are the show cause notices of the year 2007 which have been challenged without any respond to the authority concerned. All the contentions which have been raised before this Court, can also be raised before the authority concerned. The court at one point of time considering the relief of the petition had placed it before this Court. The amendment was also allowed and it sought to question the constitution of Champaner-Pavagadh Archaeological Park World Heritage Area Management Authority Act, 2006. 9.1 Considering the decisions of the Apex Court in case of Government of A.P. (supra) which have been discussed here, in case of repugnancy between the Central Act and the State Act, the doctrine of harmonious construction would always come into play. Besides this, conflict of repugnancy should be directed and not capable of being obeyed, without disobeying the same. Apt would be to reproduce those findings and observations likewise “The legislative powers of the Parliament and the State Legislatures are governed by Article 246 to 255 of Part II of the Constitution. Article 246 reads as follows: “Subject-matter of laws made by Parliament and by the Legislature of States: (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”). (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any state also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”). (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any state also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.” The Parliament has exclusive power to legislate with respect to any of the matters enumerated in List I, notwithstanding anything contained in clauses (2) and (3) of Article 246. The non-obstante clause under Article 246(1) indicates the predominance or supremacy of the law made by the Union legislature in the event of an overlap of the law made by Parliament with respect to a matter enumerated in List I and a law made by the State legislature with respect to a matter enumerated in List II of the Seventh Schedule. There is no doubt that both Parliament and the State legislature are supreme in their respective assigned fields. It is the duty of the Court to interpret the legislations made by the Parliament and the State legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non-onbstante clause in Clause (1) of Article 246, the Parliamentary legislation would prevail notwithstanding the exclusive power of the State legislature to make a law with respect to a matter enumerated in the State List. With respect to matters enumerated in the List III (Concurrent List), both the Parliament and the State legislature have equal competence to legislate. Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict. Here again, the courts are charged with the duty of interpreting the enactments of Parliament and the State legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict. Thus, the question of repugnancy between the Parliamentary legislation and the State legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in Concurrent List and there is a conflict. In both the situations, Parliamentary legislation will predominate, in the first, by virtue of the non-obstante clause in Article 246(1), in the second, by reason of Article 245(1). Clause (2) of Article 245 deals with a situation where the State legislation having been reserved and having obtained President's ascent prevails in that State; this again is subject to the proviso that the Parliament can again bring a legislation to override even such State legislation. It is in this background that the provisions contained in the two legislative enactments have to be scrutnised. The provisions of the AICTE Act are intended to improve the technical education and the various authorities under the Act have been given exclusive responsibility to coordinate and determine the standards of higher education. It is a general power given to evaluate, harmonise and secure proper relationship to any project of national importance. Such a coordinate action in higher education with proper standard is of paramount importance to national progress. Section 20 of the AP Act does not in any way encroach upon the powers of the authorities under the Central Act. Section 20 says that the competent authority shall, from time to time, conduct a survey to identify the educational needs of the locality under its jurisdiction notified through the local newspapers calling for applications from the educational agencies. Section 20(3)(a)(i) says that before permission is granted, the authority concerned must be satisfied that there is need for providing educational facilities to the people in the locality. The State authorities alone can decide about the educational facilities and needs of the locality. If there are more colleges in a particular area, the State would not be justified in granting permission to one more college in that locality. The State authorities alone can decide about the educational facilities and needs of the locality. If there are more colleges in a particular area, the State would not be justified in granting permission to one more college in that locality. Entry 25 of the Concurrent List gives power to the State Legislature to make laws regarding education, including technical education. Of course, this is subject to the provisions of Entry 63, 64, 65 and 66 of List I. Entry 66 of List I to which the legislative source is traced for the AICTE Act deals with the general power of the Parliament for coordination, determination of standards in institutions for higher education or research and scientific and technical educational institutions and Entry 65 deals with the union agencies and institutions for professional, vocational and technical training, including the training of police officers, etc. The State has certainly the legislative competence to pass the legislation in respect of education including technical education and Section 20 of the Act is intended for general welfare of the citizens of the State and also in discharge of the constitutional duty enumerated under Article 41 of the Constitution. The general survey in various fields of technical education contemplated under Section 10(1)(a) of the AICTE Act is not pertaining to the educational needs of any particular area in a State. It is a general supervisory survey to be conducted by the AICTE Council, for example, if any IIT is to be established in a particular region, a general survey could be conducted and the Council can very much conduct a survey regarding the location of that institution and collect data of all related matters. But as regards whether a particular educational institution is to be established in a particular area in a State, the State alone would be competent to say as to where that institution should be established. Section 20 of the AP Act and Section 10 of the Central Act operate in different fields and we do not see any repugnancy between the two provisions. Section 20 of the AP Act and Section 10 of the Central Act operate in different fields and we do not see any repugnancy between the two provisions. This Court in M. Karunanidhi vs. Union of India, (1979) 3 SCC 431 at page 499 held thus: “It is well settled that the presumption is always in favour of the constitutionality of a Statute and the onus lies on the person assailing the Act to prove that it is unconstitutional Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied: 1. That there is a clear and direct inconsistency between the Central Act and the State Act. 2. That such and inconsistency is absolutely irreconcilable. 3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.” This Court also referred to the earlier decisions including Deep Chand vs. State of U.P. 1959 Supp. (2) SCR 8, wherein various tests to ascertain the question of repugnancy between the two statutes were indicated and, inter alia, it was held that repugnancy between two statutes may be ascertained by considering, whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature. Reference was made to Megh Raj vs. Allah Rakhia, AIR 1942 FC 27, wherein it was observed that if the paramount legislation does not purport to be exhaustive or unqualified, there is no inconsistency and it cannot be said that any qualification or restriction introduced by another law is repugnant to the provision in the main or paramount law. This court also referred to T.S. Baliah vs. T.S. Rangachari, (1969) 3 SCR 65 wherein it was, inter alia, observed that before coming to the conclusion that there is a repeal by implication, the court must be satisfied that the two enactments are so inconsistent that it becomes impossible for them to stand together. This court also referred to T.S. Baliah vs. T.S. Rangachari, (1969) 3 SCR 65 wherein it was, inter alia, observed that before coming to the conclusion that there is a repeal by implication, the court must be satisfied that the two enactments are so inconsistent that it becomes impossible for them to stand together. In Kanaka Gruha Nirmana Sahakar Sangha vs. Narayanamma, (2003) 1 SCC 228 , this court after quoting Article 254 held: “The language of the aforesaid article is crystal clear and it inter-alia provides [subject to the provisions of clause (2)] that: 9..... (a) if any provisions of law made by the legislature of a State is repugnant to any provision of a law made by Parliament, which Parliament is competent to enact, then the law made by Parliament whether passed before or after the law made by the legislature of the State shall, to the extent of repugnancy, be void. (b) if any provision of a law made by the legislature of a state is repugnant to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then the existing law shall prevail and the law made by the legislature of the State shall, to the extent of repugnancy, be void.” “10. There cannot be any doubt that the article gives supremacy to the law made by the Parliament, which Parliament is competent to enact, but for application of this article, firstly, there must be repugnancy between the State law and the law made by Parliament. Secondly, if there is repugnancy, the State legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254 (1) and both Acts would prevail.” In T.M.A. Pai Foundation vs. State of Karnataka, (2002) 8 SCC 481 , Justice Khare, as he than was, on the question of transposition of subject “Education” from List II to List III and its effects, held: “It may be remembered that various entries in three lists of the Seventh Schedule are not powers of legislation but field of legislation. These entries are mere legislative heads and demarcate the area over which the appropriate legislatures are empowered to enact law. The power to legislate is given to the appropriate legislatures by Article 246 and other articles. These entries are mere legislative heads and demarcate the area over which the appropriate legislatures are empowered to enact law. The power to legislate is given to the appropriate legislatures by Article 246 and other articles. Thus the function of entries in three lists of the Seventh Schedule is to demarcate the area over which the appropriate legislatures can enact laws but does not confer power either on Parliament or the State Legislatures to enact laws. It may be remembered, by transfer of the entries, the character of the entries is not lost or destroyed.” Justice B.N. Kirpal, the then Chief Justice of India, on the question of admissions in private unaided professional colleges held that: “It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counseling by State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage of this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority aided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and post-graduation non-professional colleges or institutions.” In Islamic Academy of Education vs. State of Karnataka, (2003) 6 SCC 697 at 770, it was held as under: “Local Needs would vary from State to State. Even development of a backward area may be a local need. The absence of a good educational institution in a particular area may be a local need. Even development of a backward area may be a local need. The absence of a good educational institution in a particular area may be a local need. State may, in pursuit of its policy for the development of the people, consider it expedient to encourage entrepreneurs for establishing educational institutions in remote and backward areas for the benefit of the local people. Local needs, therefore, cannot be defined only with reference to the State as a unit. For good reasons the State may not like to establish professional colleges or institutions only in their capitals.” In Jaya Gokul Educational Trust vs. Commissioner-cum-Secretary Higher Education and Others, (2000) 5 SCC 231 and Government of A.P. and Another vs. Medwin Educational Society and Others, (2004) 1 SCC 86 , similar views were expressed by this Court. The educational needs of the locality are to be ascertained and determined by the State. Having regard to the regulations framed under the AICTE Act, the representatives of the State have to be included in the ultimate decision making process and having regard to the provisions of the Act, the Writ Petitioners would not in any way be prejudiced by such provisions in the A.P. Act. Moreover, the decision, if any, taken by the State authorities under Section 20(3)(a)(i) would be subject to judicial review and we do not think that the State could make any irrational decision about granting permission. Hence, we hold that Section 20(3)(a)(i) is not in any way repugnant to Section 10 of AICTE Act and it is constitutionally valid.” 9.2. In case of M. Karunanidhi (supra), the Supreme Court also set out the conditions to be fulfilled before holding about the repugnancy between the Central Act and the State Act. None of the conditions was satisfied. The language of Article 254 since is abundantly clear which leave no room of doubt, the Article gives supremacy to the law which was made by the Parliament. The Parliament is competent to enact but it does not restrict the power of the State Government to legislate, as rightly pointed out in sub-clause (2) of Article 254 of the Constitution of India. Section 3 of the Comprehensive General Development Control Regulations, 2017 provides that there is no permission needed, only information is to be given. No permission is to be obtained from the State. 9.3. Section 3 of the Comprehensive General Development Control Regulations, 2017 provides that there is no permission needed, only information is to be given. No permission is to be obtained from the State. 9.3. Presumption always since favours constitutionality of statute, petitioner, who challenges this Act of the State is obligated to prove the said Act to be unconstitutional and in absence of any inconsistency between the Central and State Act which is irreconcilable and there being no situation which would make it impossible to obey one without disobeying other, challenge needs no entertainment. 9.4. Therefore, from the discussion above, the show cause notices issued under Rule 38 of the Ancient Monuments and Archaeological Sites and Remains Rules by Government of India for unauthorized construction cannot be questioned nor would the provision of the Heritage Act be held to be inconsistent and repugnant. Let the issues including of the authority concerned, having no powers, be raised before the concerned authority. 10. Resultantly, the petition is dismissed.