ORDER : Anant Ramanath Hegde, J. Bangalore Metro Rail Corporation Ltd. (for short ‘BMRCL’) is a Company registered under the Companies Act, 1956 (Act, 1956). BMRCL operates a metro rail network in Bengaluru. 2. The petitioner - ITD CEMINDIA JV is a public limited company and vendor for civil construction of certain elevated structures (viaduct & Stations). Petitioner-Company is registered under Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (for short ‘Act, 1996’). 3. The petitioner has assailed, the Notification No. KAYI 139 LWA 2017 dated 18.11.2019 by 1 st respondent -State Government notifying BMRCL services as an ‘essential service’. 4. The petitioner has undertaken the construction work of certain stretch of Metro Rail in Bangalore, the project under taken by BMRCL. The petitioner-Company is registered in Mumbai. The petitioner –Company is registered under Sub-Section (2) of Section 7 of the Contract Labour (Regulation and Abolition) Act, 1970 (for short ‘Act, 1970’) and the Rules made there under. 5. The petitioner–Company has also obtained licence under the Act, 1970 for construction of certain stretch of elevated structure for BMRCL in Bengaluru. 6. The petitioner- Company is also registered under Sub-Section (3) of Section 7 of the Act, 1996. 7. The BMRCL having entrusted the construction of certain stretch of BMRCL has issued a certificate undertaking to be bound by all the provisions of Act, 1970 and the Contract Labour (Regulation and Abolition), Central Rules, 1971. 8. The petitioner has assailed the endorsement dated 03.12.2019, issued by 3 rd respondent - Labour Officer, Division-3, Bengaluru, (Authority under the State Government), who endorsed (on the reply issued by the petitioner) that the petitioner-Company has to get it registered under the provisions of Act, 1996. 9. The petitioner is challenging the impugned orders issued by the officers of the State Government on the premise that the State Government is not the appropriate Government for the petitioner in so far as the work undertaken by the petitioner in relation to the BMRCL. The petitioner contends that the impugned orders are without jurisdiction. 10. Thus, the following question arises: (i) Which is the “appropriate Government” for the petitioner in relation to work undertaken for BMRCL? 11. The respondent-State and BMRCL have raised a contention that, for BMRCL the State Government is the appropriate Government and the authorities under the State Government have jurisdiction to pass the impugned orders. 12. 10. Thus, the following question arises: (i) Which is the “appropriate Government” for the petitioner in relation to work undertaken for BMRCL? 11. The respondent-State and BMRCL have raised a contention that, for BMRCL the State Government is the appropriate Government and the authorities under the State Government have jurisdiction to pass the impugned orders. 12. Sri P S Rajagopal, learned Senior counsel for the petitioner raised the following contentions: (i) Under Section 2(a)(i) of the Industrial Disputes Act, 1947, (for short ‘Act, 1947’) for a Railway Company, and the Company run by or under the authority of the Central Government, the Appropriate Government is the Central Government. (ii) Section 2(o) of the Act, 1947 defines the expression “Railway company” and the said definition incorporates the definition of “railway company” as defined in sub-section (5) of Section 3 of Indian Railways Act, 1890 (Act, 1890). Thus, BMRCL would be a railway company as defined under the Act, 1947. (iii) Under Section 2(a) of the Act, 1996, the expression “appropriate Government” is defined. The appropriate Government under the said definition would be the appropriate Government for the Establishment for which the petitioner works or supplies building workers. Since the petitioner has undertaken the construction of Metro Railway for BMRCL, the appropriate Government for the petitioner would be the Central Government. (iv) Under Section 2(b) of the Industrial Employment (Standing Orders) Act, 1946 (for short ‘Act, 1946) the “appropriate Government” for an establishment under the control of the Central Government or a Railway administration is the Central Government. (v) Though the Act, 1890 is repealed and is not in force, the repeal of the Act, 1890 does not obliterate the definition of the “Railway company” incorporated by reference in Section 2(o) of the Act, 1947 and sub- section (2) of Section 2 of Metro Railways (Construction of Works) Act, (for short ‘Act, 1978’). (vi) The metro rail is predominantly controlled by the Central Government. Under the Act, 1978 and the Metro Railways (Operation Maintenance) Act, 2002, (for short ‘Act, 2002’) the metro railway cannot be operated without the permission of the Central Government and its operation can be stopped at any time by the Central Government. 13. (vi) The metro rail is predominantly controlled by the Central Government. Under the Act, 1978 and the Metro Railways (Operation Maintenance) Act, 2002, (for short ‘Act, 2002’) the metro railway cannot be operated without the permission of the Central Government and its operation can be stopped at any time by the Central Government. 13. Sri S.Santosh Narayan, learned counsel for the BMRCL raised the following contentions: (i) The definition of ‘appropriate Government’ as provided under Section 2(a)(i) of the Act, 1947 would exclude the Central Government in case the share holding of Central Government in those companies is less than 51%. The Central Government would be the Appropriate Government for only those companies referred to in Section 2(a)(i). (ii) The Central Government’s shareholding in BMRCL is only 50% and BMRCL is not specifically referred to in Section 2(a)(i) of the Act, 1947, Central Government cannot be the Appropriate Government for BMRCL. (iii) Section 2(o) of the Act, 1947 defines “Railway company” by referring to the definition of “railway company” as defined in Section 3(5) of Act, 1890. Since Act, 1890 is repealed by Railways Act, 1989 (Act, 1989), after the repeal of Act, 1890, Section 2(o) of the Act, 1947 is not amended to define the expression ‘Railway company’. Thus, the definition of “Railway company” as defined in Act, 1890 is not available, and the said definition cannot be read into in Section 2(o) of Act, 1947. (iv) The Act, 1890 defines the expression ‘tramway’ under Section 3(1) and it incorporates the definition of ‘tramway’ as defined in Tramways Act, 1886. The definition of ‘tramway’ as provided under Section 3(5) of Indian Tramways Act, 1886 does not cover the Metro Railway as metro rail was not in existence in 1886. (v) The Act, 1989 which defines the “railway” specifically excludes the tramway. (vi) BMRCL stands excluded from the applicability of Act, 1989 as metro railway and is not covered under the definition of railway under the Act, 1989. (vii) BMRCL is governed under the provisions of Act, 2002 and the expression “metro railway” is defined in Section 2(i) under the Act, 2002. Said definition excludes tramways and “railway company”. Thus, BMRCL cannot be equated with a “railway company” as it is defined under the Act, 2002. (vii) BMRCL is governed under the provisions of Act, 2002 and the expression “metro railway” is defined in Section 2(i) under the Act, 2002. Said definition excludes tramways and “railway company”. Thus, BMRCL cannot be equated with a “railway company” as it is defined under the Act, 2002. (viii) The Act, 2002 also defines the expression railway in Section 2(p) by referring to the definition of railway as defined in Clause (31) of Section 2 of Act, 1989. The said definition excludes tramway and does not include metro railway, as such, BMRCL is not a “railway company”. (ix) The Act, 2002 being a Special Legislation, Act, 1890 which is repealed by Act, 1989 cannot prevail over the Special Legislation. (x) Under the Memorandum of Understanding among the Government of India, Government of Karnataka and BMRCL, the cost of land, rehabilitation and resettlement is to be borne by the Government of Karnataka. Necessary approval, clearance and sanction for smooth implementation of the project has to be accorded by the Government of Karnataka. Thus, the State Government has pervasive control. (xi) In Writ Petition No.16187/2009 in M/s Logwell Forge Ltd. vs Bengaluru Metro Rail Corporation Limited , ILR 2010 Kar 87 , the Court has held that the Government of Karnataka has substantial control over BMRCL. (xii) In Writ Appeal No.3529/2009, the Court has held that the State Government has substantial control over BMRCL. (xiii) In an identical case in CMRL Employees Union vs Ministry of Housing and Urban Affairs and Ors , WP.No.12931/2019 the High Court of Madras has held that Chennai Metro is not a railway company coming under the purview of the Central Government. 14. Learned Additional Advocate General Sri. Santosh Gogi, appearing for the State raised the following contentions: (i) BMRCL is the joint venture of the Government of Karnataka and Government of India each having 50% stake in the BMRCL (ii) The Board of Directors of BMRCL comprises: 1. Hon’ble Chief Minister of GOK 2. Hon’ble Minister of State of Bengaluru City Development, 3. Chief Secretary to the GOK, 4. Principal Secretary to GOK (Finance Department), 5. Chairman, BDA, 6. Secretary to Government Housing and Urban Development Department, 7. Commissioner Bengaluru City Corporation, 8. Managing Director, Karnataka Urban Infrastructure Development and Finance Corporation, 9. Special Officer, Mass Rapid Transit System. Hon’ble Minister of State of Bengaluru City Development, 3. Chief Secretary to the GOK, 4. Principal Secretary to GOK (Finance Department), 5. Chairman, BDA, 6. Secretary to Government Housing and Urban Development Department, 7. Commissioner Bengaluru City Corporation, 8. Managing Director, Karnataka Urban Infrastructure Development and Finance Corporation, 9. Special Officer, Mass Rapid Transit System. (iii) The decision relating to the land acquisition, shifting of utilities and other structural alignment, rehabilitation of the project affected persons, multi model integration and an incidental decision is by the State Government. (iv) Metro Rail by BMRCL is not carried on by or under the Authority of the Central Government. BMRCL is a registered Company under the Act, 1956, and its Board runs the metro railway in Bengaluru as such, it is not an industry carried on by or under the authority of Government of India; (v) The Act, 1989 defines railway in Section 2(31) and the definition of railway excludes the tramway. Thus, the metro rail which is similar to a tramway cannot be a railway company. (vi) The Act, 2002 is the special enactment and it defines the expression, “metro railway” and the “railway” and the Act, 2002 makes a distinction between “railway” and “metro railway”. Hence, the “metro railway” is different from “railway” and definition of “railway” or the “railway company” in the Act, 1890 cannot be looked into; (vii) Since, the expression “metro railway” is not referred in the Act, 1947, reference cannot be made to the definition of “railway company” in the Act, 1989 which is repealed. (viii) The role of the Central Government is confined to the statutory framework and nothing to do with the establishment and operation of the metro railway. (ix) Section 2(f) of Act, 2002 defines “Government metro railway” and Section 2(l) defines “non-Government metro railway”. BMRCL being a Company registered under the Act, 1956 is a “non-Government metro railway”. As such, the Central Government is not the appropriate Government for metro railway. (x) The Ministry of Urban Development, Government of India vide its letter dated 11.05.2006 has informed the Chief Secretary of State of Karnataka to enact appropriate Legislation to regulate construction, operation and maintenance of the system. Thus, the State Government has the legislative competence to enact law relating to maintenance and operation of the metro railway. (x) The Ministry of Urban Development, Government of India vide its letter dated 11.05.2006 has informed the Chief Secretary of State of Karnataka to enact appropriate Legislation to regulate construction, operation and maintenance of the system. Thus, the State Government has the legislative competence to enact law relating to maintenance and operation of the metro railway. (xi) As per Clauses 12.16 to 12.18 of Memorandum of Understanding dated 24.12.2010, the Government of Karnataka has to bear the financial losses if any, and capital expenditure during the operational phase; Thus, the State Government has the primacy over the Central Government in the operation, running and maintenance of metro railway; (xii) Under Clause D(i) of Metro Rail Policy, 2017, the State Government has to moot for assistance by the Central Government and the State Government has to provide required support to metro rail companies. 15. Learned Counsel Sri. M.N Kumar for the Union of India would urge the following points: (i) Memorandum of Association of BMRCL classifies its main object as carrying on railway transport as a railway company. Thus, BMRCL is a Railway Company under Section 2(a)(i) r/w 2(o) of the Act, 1947. (ii) The Bengaluru Metro Phase-I received Government of India’s approval with equity/ subordinate debt and imposed conditions governing implementation which demonstrates central control. (iii) BMRCL is registered as Principal Employer with the Central Government under Section 7 of the Act, 1970 indicating jurisdiction of authorities under the Legislation passed by the Parliament. (iv) The Central Government in exercise of its powers under Section 1(3) of Act, 1978 issued Notification extending the Act, 1978 to Karnataka which establishes the Central Government’s control governing metro construction in Bengaluru. (v) The Joint Venture Memorandum of Understanding dated 24.12.2010 provides 50:50 share holding. It provides for appointment of General Manager only with the approval of the Central Government and the Chairman is nominated by the Central Government. (vi) Phase-II of Bangalore Metro Railway is approved by the Central Government in exercise of power under the Act, 1978 and Act, 2002. (vii) The Committee constituted by the Central Government is involved in payment of wages, inspections, compliance and grievance redressal. (viii) The Delhi High Court treated Delhi Metro Rail Corporation as “Railways” for purposes of Section 2(a)(i) of Act, 1947 and The Essential Services Maintenance Act, 1981 in the context of industrial action, supporting Central “appropriate Government”. (vii) The Committee constituted by the Central Government is involved in payment of wages, inspections, compliance and grievance redressal. (viii) The Delhi High Court treated Delhi Metro Rail Corporation as “Railways” for purposes of Section 2(a)(i) of Act, 1947 and The Essential Services Maintenance Act, 1981 in the context of industrial action, supporting Central “appropriate Government”. (ix) The Karnataka Labour Commissioner’s letter dated 26/04/2022 states BMRCL does not fall under the State Labour Department and that the Central Government shall address workmen’s grievances, evidencing inter-Governmental consensus on jurisdiction. 16. The Court has considered the contentions raised at the Bar and perused the records. 17. The question whether the Central Government or the State Government is the “Appropriate Government” for BMRCL has to be decided by referring to the definition of “Appropriate Government” referred to the definition of appropriate Government as found in Section 2(a) of the Act, 1947. 18. This Court has decided the aforementioned question in W.P.No.40113/2017 and connected matters. And the Court has held that for BMRCL the “Central Government” is the “appropriate Government”. 19. The Act, 1996 defines the ‘appropriate Government’ under Section 2(1)(a) and the definition of appropriate Government which is relevant for the adjudication of this case reads as under: "2(1)(a) “appropriate government” means,- (i) in relation to an establishment (which employs building workers either directly or through a contractor) in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (14 of 1947), is the Central Government, the Central Government; (ii) in relation to any such establishment, being a public sector undertaking, as the Central Government may by notification specify which employs building workers either directly or through a contractor, the Central Government; Explanation.- For the purposes of sub-clause (ii), “public sector undertaking” means any corporation established by or under any Central, State or Provincial Act or a Government Company as defined in section 617 of the Companies Act, 1956 (1 of 1956), which is owned, controlled or managed by the Central Government;" 20. When a specific question is put to the contesting respondents as to whether the expression “in relation to establishment which employs building workers either directly or through a contractor” found in Section 2(a) referred to above would apply to the establishment like BMRCL, it is submitted that the expression would refer to the establishments which employ building workers either directly or through a contractor. 21. 21. The petitioner on 03.07.2017 has obtained registration certificate under the Act, 1996 in respect of construction of elevated structures for which BMRCL has obtained licence under Act, 1996. BMRCL has also certified that petitioner is the contractor for the elevated structures referred to above. Hence, the petitioner is carrying on the work on behalf of BMRCL in respect of aforementioned elevated metro rail project. 22. In that event, the respondent-State insofar as the work carried on by the petitioner for BMRCL cannot direct one more registration under the Act, 1996 at the hands of State authorities. In that view of the matter, the endorsement dated 03.12.2019 at Annexure – F is without jurisdiction. 23. The petitioner has also questioned the Notification dated 18.11.2019 issued under Section 2(n)(vi) of the Act, 1947 as public utility service. Entry 1 of First Schedule to Act, 1947 reads as under. Relevant portion of Section 2(n) of Act, 1947 reads as under 2(n) “ Public utility service” means- i. Any railway service or any transport service for the carriage of passengers or goods by air ii. xxx (vi) Any industry specified in the first schedule which the appropriate Government may, if satisfied that public emergency or public interest so requires by notification in the Official Gazette declared to be a public utility service for the purposes of this Act, for such period as may be specified in the notification. xxx 24. The first entry in the First Schedule in the Act, 1947 reads as under: '1. Transport (other than railways) for the carriage of passengers or goods by land or water’. (Emphasis supplied) First schedule to the Act, 1947 does not include railway. Rather, it specifically excludes railway. 25. Section 2(n)(vi) provides that appropriate Government may, if satisfied that public interest so requires, notify public utility service in respect of an industry specified in the First Schedule. Since 'appropriate Government’ for BMRCL, is the Central Government, the State Government has no power to issue Notification in respect of Railway. 26. To issue Notification under Section 2(n)(vi) of Act, 1947, in respect of any industry specified in the First Schedule, the Government issuing the Notification must be the ‘appropriate Government’ for that industry. Since State Government is not the appropriate Government for BMRCL the Notification dated 18.11.2019 at No.KAYI.139.LWV.2017 at Annexure–G issued by the State Government is without jurisdiction and has to be quashed. 27. Since State Government is not the appropriate Government for BMRCL the Notification dated 18.11.2019 at No.KAYI.139.LWV.2017 at Annexure–G issued by the State Government is without jurisdiction and has to be quashed. 27. Since the appropriate Government for the BMRCL is Central Government, the State Government cannot declare the Metro services as a Public utility service under Section 2(n) of Act, 1947. 28. Hence the following : ORDER (i) Writ Petition is allowed. (ii) The impugned order dated 18.11.2019 marked at Annexure-G, issued by 1 st respondent is quashed. (iii) The impugned endorsement dated 03.12.2019 marked at Annexure-F is quashed. (iv) No order as to cost.