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The State of Bombay Vs. Pandurang Vinayak Chaphalkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 319 of 1950
Judge
Reported inAIR1951Bom263; (1950)52BOMLR852; ILR1951Bom271
ActsBombay Building (Control on Erection) Act, 1948 - Sections 15; Bombay Building (Control on Erection) Ordinance, 1948 - Sections 1(4); Bombay General Clauses Act, 1904 - Sections 7, 9 and 25
AppellantThe State of Bombay
RespondentPandurang Vinayak Chaphalkar and ors.
Appellant AdvocateH.M. Choksi, Government Pleader
Respondent AdvocateS.G. Patwardhan, Adv.
Excerpt:
.....4 9(2), 15 - bombay building (control on erection) ordinance, no. 1 of 1048, sections 1(4), 13--bombay general clauses act (bom. i of 1904), sections 1, 9, 25--cotton cloth and yarn (control) order, 1945, clause 2(2)--notification issued under ordinance extending its operation--repeal of ordinance by act of 1948--application of section 25 of act of 1904 to repealed ordinance--whether notification issued under ordinance extends operation of act of 1948.;under the bombay building (control on erection) act, 1948, the provincial government issued a notification extending its operation to areas other than those specifically mentioned in the bombay building (control on erections) ordinance, 1948. the bombay building (control on erection) act, 1948, repealed this ordinance by section 15..........it was enacted as follows :'and it is hereby declared that the provisions of sections 7 and 25, bombay general clauses act, 1904, shall apply to the repeal as if that ordinance were an enactment.'5. now section 7, bombay general clauses act, 1904, merely saves the rights which have been acquired or the liabilities which have been incurred. it corresponds to section 6, central general clauses act. section 25, bombay general clauses act, 1904, provides as follows :'where any enactment is, after the commencement of this act, repealed and re-enacted by a bombay act with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, by-law or form made or issued under the repealed enactment shall, so far as it is not not.....
Judgment:

Bavdekar, J.

1. This is an appeal which has been filed by the State against 3 accused who were charged under Section 9(2) real with Section 4, Bombay Building (Control on Erection) Act, 1948.

2. It is not in dispute that accused 1 in this case had put up, without obtaining permission from the Controller of Buildings, Bombay, appointed under the provisions of the Act, a cinema theatre, that the cinema theatre had not been completed and that it was in the process of construction when it was noticed that the permission of the Controller was not obtained. Accused 1 along with two others were then prosecuted for a breach of Section 9 (s) read with Section 4, Bombay Building (Control on Erection) Act, 1948.

3. It is not necessary to set out the various defences which were taken on behalf of the accused persons because the one upon which they must succeed is that there is really no notification extending the operation of the Bombay Building (Control on Erection) Act, 1948, to areas other than certain specified places which are mentioned in Section 15 of that Act.

4. Prior to the enactment of the Act, which was XXXI [31] of 1948, there was in force an Ordinance called the Bombay Building (Control on Erection) Ordinance, 1948 (I [1] of 1948). That ordinance also extended to certain specified areas mentioned in Section 13 of the Ordinance ; but by Section 1, Sub-section (4) of the Ordinance, the Provincial Government was permitted by a notification in the official Gazette to direct that it should extend to any other areas specified in the notification. The same sub-section permitted such extension to be made not only with regard to buildings in general but also in regard to such buildings as were intended to be need for a specified purpose to be mentioned in the notification. Acting under these powers, the Provincial Government extended the operation of Ordinance I [1] of 1918 to all areas in the Province of Bombay, other than the areas specified in the schedule to the said Ordinance, but only in respect of buildings intended to be used for the purpose of cinemas, theatres and other places of amusement or entertainment. Act XXXI [31] of 1948 repeals this Ordinance; but by Section 15 which repealed the Ordinance it was enacted as follows :

'and it is hereby declared that the provisions of Sections 7 and 25, Bombay General Clauses Act, 1904, shall apply to the repeal as if that Ordinance were an enactment.'

5. Now Section 7, Bombay General Clauses Act, 1904, merely saves the rights which have been acquired or the liabilities which have been incurred. It corresponds to Section 6, Central General Clauses Act. Section 25, Bombay General Clauses Act, 1904, provides as follows :

'Where any enactment is, after the commencement of this Act, repealed and re-enacted by a Bombay Act with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, by-law or form made or issued under the repealed enactment shall, so far as it is not not inconsistent with the provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, by-law or form made or issued under the provisions so re-enacted.'

Now Section 25, Bombay General Clauses Act, 1904, in terms applies only when an enactment is repealed and re-enacted by a Bombay Act, and had it not been for Section 15, Sub-section (1), Bombay Building (Control on Erection) Act, 1948, it might have been arguable that the Ordinance was not an enactment and consequently Section 25, Bombay General Clauses Act, 1904, had no application. That is why Section 15, Sub-section (1) provides that Sections 7 and 25, Bombay General Clauses Act, 1904, will apply to the repeal of Ordinance I [1] of 1948 as if that Ordinance was an enactment. It is no argument, therefore, to say that B. 25 had no application merely because what was repealed by Section 15, Sub-section (1), Bombay Building (Control on Erection) Act, 1948, was an Ordinance and not an Act.

6. The question, however, is what is the effect of the application of Section 25, Bombay General Clauses Act, 1904 Section 25 enables us to hold that any notification issued under Ordinance I [1] of 1948 was to be deemed to have been made or issued under certain provisions of Act, XXXI [31] of 1948 and also to continue in force until it is superseded. It is nobody's contention that assuming that the Notification is to be deemed to have been issued and to continue in force under Act XXXI [31] of 1948, it has been superseded by any subsequent notification.

7. One of the points to be considered is whether the notification can be said to continue in force and be deemed to have been made under Act, XXXI [31] of 1948 on the ground that it is inconsistent with the provisions which are re-enacted in the Act of 1948. But in our view it is not necessary to go into that question for the reason that even assuming the Notification continues in force and assuming the Notification is to be deemed to have been made or issued under the provisions of Bombay Act, XXXI [311 of 1948, the Notification will rot help the State. The Notification extended, as I have already mentioned, the scope of Ordinance 1 [1] of 1948 to areas other than those which were mentioned specifically in the Ordinance itself. If we were to take the Notification as having been issued under Bombay Act, XXXI [31] of 1948, we must take the Notification as it stands without changing any of its words and the Notification even if it continues in force because of the application of Section 25, Bombay General Clauses Act, 1904, extends the Ordinance and not the Act. In the result, therefore, the contention made by the State that the Act had been extended to areas other than those mentioned in Section 15, Bombay Building (Control on Erection) Act, 1948, to the extent that cinema theatres, for example, are concerned, fails because the Notification cannot lend any support whatsoever to it. It has got to be remembered that Section 25, Bombay General Clauses Act, 1904, does rot say that the Notification issued under the prior enactment will have to be taken as a notification issued under the new enactment mutats mutandis. If it had so directed, then for the words in the Notification by which this Ordinance is extended, it might or might not have been possible to substitute the words 'the Act of 1948.' Secondly, Section 9, Bombay General Clauses Act has not been made applicable. If that section had been made applicable to the repealed Ordinance as if the Ordinance was an Act in the Fame manner as Sections 7 and 25, Bombay General Clauses Act, 1904, had been made applicable, then an argument may have been made that any reference in the Notification which might be regarded as an instrument, to the Ordinance of 1948 was to be construed as a reference to the provision which was re enacted, namely, Act XXXI [81] of 1948. It is possible of course that a notification may not be regarded an instrument, but Section 9, Bombay General Clauses Act shows how it is necessary to have a specific provision if it is desired to read for an Act--end necessarily therefore for an Ordinance--an Act which is a re enactment. The result desired by the State could have been achieved in the manner followed by the Cotton Cloth and Yarn (Control) Order, 1946. Under Clause 2, Sub-clause (2), of that Order, the Cotton Cloth and Yarn (Control) Order, 1943, stands repealed. The first proviso provides that anything done under any provision of the Cotton Cloth and Yarn (Control) Order. 1943, shall be deemed to have been done under the corresponding provisions of the Cotton Cloth and Yarn (Control) Order, 1945. This enables any notification which was issued under the Cotton Cloth and Yarn (Control) Order, 1943, to be deemed to be a notification issued under the Cotton Cloth and Yarn (Control) Order, 1945. But the clause did not stop there. A further proviso was added to the clause, namely,

'Provided further that any reference in any order issued under the Defence of India Rules or in any notification issued thereunder to any provision of the Cotton Cloth and Yarn (Control) Order, 1945, shall, unless a different intention appears, be construed as reference to the corresponding provision of this Order.'

8. In our view, in the absence of any pro-vision embodying the principle underlying Section 9, Bombay General Clauses Act, 1904, or the second proviso to Clause 2, Sub-clause (2), Cotton Cloth and Yarn (Control) Order, 1945, it is not permissible to substitute for the words of the Notification under the Ordinance of 1948 referring to the Ordinance words referring to the Act of 1948.

9. The learned Government Pleader who appears on behalf of the State contends that in case there is a provision made in one portion of an Act by which something which was done under a similar provision, whether it was an Act or an Ordinance, was to be deemed to have been done under the former, it is not necessary further to extend the provisions of Section 9, Bombay General Clauses Act, 1904, or to have in the former Act a provision corresponding to the second proviso of the second sub-clause of Clause 2, Cotton Cloth and Yarn (Control) Order, 1945 ; and in support of his contention, he has referred us to a Full Bench decision reported in Emperor v. Ranchodlal Hirabhai 50 Bom L. R. 295 : A.I.R. 1948 Bom. 870: 49 Cri.L.J. 677 . Now it appears to us that all that this Court held in that case is that if one section of a statute enacts that an order which was passed under a previous statute was to be deemed to be an order under the statute so enacting, than if there is any reference to the orders made under the statute so enacting in any other portion, that reference must be construed to be a reference not only to the order made under the statute but also to an order deemed to have been made under it. Now that principle cannot obviously be applied in the present case. We are not suggesting that the notification which was issued is not to be deemed to have been made under the Act of 1918 or that it is not a notification under the Act of 1948. Our view is that even assuming that the notification is to be deemed to have been made under the Act of 1948, the notification does not extend the operation of the Act but it extends the operation of the Ordinance which is not of any use to the prosecution.

10. The second point which is made on behalf of the State is that in case the intention of the Legislature is clear, a lacuna in the drafting should not be allowed to defeat the intention of the Legislature. We have no quarrel with that proposition ; but the question is whether it was the intention of the Legislature that in the notifications which were issued under the former Ordinance, references to the Ordinance were to be made as references to the Act. The Legislature has not embodied any such provision specifically in the statute, and we fail to find anything from which we can say that the Legislature had an intention that references in the notifications issued under the Ordinance should be read as if they were references to the Act. We have no doubt that the Legislature. must have intended that the Act should apply not only to the areas which are mentioned in Section 15 of the Act of 1904, but also to such other areas as in the opinion of the Provincial Government the Act should be extended. Sub-section (3) of Section 1 of the Act of 1918 as a matter of fact shows clearly such an intention. But the Legislature has provided for the carrying out of such intention because Sub-section (3) of Section 1 of the Act of 1948 enables the Provincial Government to carry out such intention by issuing a notification under the Act. The Act will be extended to such areas as the Provincial Government think fit but they will have to issue notification for that purpose under Section 3, Sub-section (1), of the Act of 1948, and if at all there is any failure to carry out the intention, it is not a lacuna loft by the draftsman but because the Provincial Government failed to issue a proper notification for reasons which we do not know. We are not, therefore, allowing the intention of the Legislature to be defeated because of bad drafting.

11. The appeal, therefore, fails and is dismissed.


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