(1) In this Writ Petition, under Art. 226 of the Constitution the petitioners challenge the validity of the Orders made, by the State Government under S. 50 of the Bombay Police Act, 1951(Bombay Act XXII of 1951), to be hereinafter referred to as the 'Act' on 22-10-1960, 31-5-1961, 18-12-1961, 22/25-6-1962, 31-12-1962 and 10-7-1963. But at the time of the hearing of this petition Sri V.S. Mallimath the learned counsel for the petitioners did not challenge the validity of the order dated 22-10-1960. Therefore all that we have to consider is whether the remaining orders are ultra vires of the powers of the State Government as contended by Sri Mallimath.
(2) As per the notification dated 22-10-1960, the Government issued two Orders. They are marked as Exhibit 'A' an 'B' in the case. They read as follows:
'Notification No. HD. 155 PEG 60 dated, Bangalore 22nd October 1960 Assvija 30 Saka Era 1882.
Whereas the Government of Mysore is of the opinion that Yakkundi village in Bijapur District is in a disturbed condition and that the conduct of certain sections of the inhabitants of the said village renders it expedient temporarily to employ additional police therein now, therefore in exercise of the powers conferred by sub-section (1) of Section 50 of the Bombay Police Act, 1951(Bombay Act XXII of 1951), as in force in Bombay areas, the Government of Mysore hereby specifies--
(a) the Yakkundi Village in Bijapur District as 'the disturbance area' in which the additional police of the strength set forth in the Schedule hereto annexed, shall be employed:
(b) six months from the date of employment of the said additional Police as the period for which the said additional police shall be employed.
'The cost of the said additional police indicated in the Schedule shall be imposed under S. 50 of the said Act.
Additional Police Cost
One Civil Police Head Constable. Rs. 581,75 per mensem.
One Civil Police Constable.
One Armed Head Constable.
Three Armed Police Constables.
By Order and the name of
the Governor of Mysore.
Under Secretary to Government,
No. HD 155 Peg 60, dated Bangalore 22nd October 1960(Asvija 30, Sake Era 1882).
Whereas the Government of Mysore have in Notification No. HD 155 PEG 60 dated 22nd October 1960, specified the Yakkundi Village in Bijapur District as 'the disturbance area' and have directed the employment of additional police for a period of six months in said disturbance area at the total cost of Rs. 581.75 np. per mensem under sub-section (1) of S. 50 of the Bombay Police Act, 1951(Bombay Act XXII of 1951) as in force in the Bombay area.
(2) Whereas the cost of the said additional police is a tax imposed under S. 50 of said Act and has to be recovered in the manner prescribed in the said section.
(3) Now, therefore in pursuance of Clause (x) of sub-section (3) of S. 50 of the said Act, the Government of Mysore hereby require the Deputy Commissioner of Bijapur District to recover the cost prima facie additional police from all persons except the persons mentioned in paragraph 4 of this Order who are inhabitance of the 'disturbance area' as an arrear of land revenue and also directs that the cost shall be recovered in proportionate to the land revenue payable by such persons and in the case of inhabitants who are landless, in the disturbance area, shall be liable to pay the cost in the said proportion for all the dependants and servants who have no man of livelihood.
(4) In exercise of the powers conferred by sub-section (6) of S. 50 of the said Act, the Government of Mysore hereby exempts persons in the service of the Government of Mysore central Government or the Government of another State, persons in the service of the defence Department and the persons who have suffered lists in the disturbance area, from liability to bear their portion of the cost of the additional police.
By Order and in the name
of the Governor of Mysore,
Under Secretary to Government,
(3) Those orders came to an end on 15-5-1961. But by means of the Notification dated 31-5-1961, the Government purported to extend the Orders made on 22-10-1960. It was further purported to have been extend the Orders made on 22-10-1960. It was further purported to have been extended by Notifications dated 18-12-1961, 22/25-6-1962, 13-12-1962 and 10-7-1963. It may be noted that all the Notification under the proviso to Section 50 of the 'Act' were issued long after the time fixed under the immediately previous Notification had expired the immediately previous Notification had expired. The question is whether those Notification are valid in law.
(4) Section 50 of the 'Act' to the extent material for our present purpose reads as follows:
'(1) If in the opinion of the State Government any area is in a disturbed or dangerous condition or in which the conduct of the inhabitants or of any particular section of the inhabitants renders it expedient temporally to employ additional Police, it may be notification in the Official Gazette specify--
(a) the area(hereinafter called the 'disturbance area') in which the additional Police is to be employed.
(b) the period for which the additional Police is to be employed Provided that the period fixed under clause (b) may be extended by the State Government from time to time, if in its opinion it is necessary to do so in the general interest of the public. The cost of the additional Police shall be a tax imposed under this section and shall be recovered in the manner prescribed in the succeeding sub-sections.
(2) The decision of the State Government under Cls. (a) and (b) of sub-section (1) shall be final.'
(5) from the reading of this section it is clear that the requirements of Section 50(1) are different from that of the Proviso to that section. Under the former before a Notification can be issued, the State Government must be of the opinion that the area concerned is in a disturbed or dangerous condition or in that area the conduct of the inhabitants or of any particular section of the inhabitants renders it expedient temporarily to employ additional police, whereas under the Proviso for the purpose of extension, all that is required is that the Government must be of the opinion that it is necessary to do so in the general interest of the public
(6) It must be remembered that this is a penal provision. It empowers the State Government to levy taxes on the inhabitants of a village for certain acts or omissions committed by their co-villagers. The liability in question is a vicarious liability. That being so, that provision must receive strict construction at our hands.
(7) So far as the notifications under the proviso to Section 50(1) are concerned, they can only extend an existing notification. Under that provision no independent notification can be issued. The term 'extend' means 'continue' One cannot continue a thing which is not in existence. If a notification had already came to an end, there can be no question of extending that notification. If it is otherwise, a notification issued several years earlier and which has expired can be resurrected by the Government by saying that in its opinion it is necessary to extend this earlier notification. No such power has been conferred on the Government.
(8) It may be further noted that the entire village has to pay the costs of police force employee during the time the notification is in force. From the facts established, it is clear that there were intervals when no notification under Section 50(1) was in force. Therefore they cannot be called upon to pay the costs, incurred for maintaining the police in the village during that period.
(9) One conclusion in this regard receive support from the decision of the Punjab High Court in Chanan Singh v Emperor AIR 1940 Lah 459.
(10) Further each one of these Notification purport to operate retrospectively. Such retrospective operation is impermissible. Sec the decision of this Court in India Sugars and Refineries Ltd. v. State of Mysore (1960) 38 Mys LJ 635: (AIR 1960 Mys 326).
(11) For the reason mentioned above, this petition is allowed and the Notification issued under Section 50 of the 'Act' on 31-5-1961, 18-12-1961, 22/25-6-1962, 13-12-1962 and 10-7-1963 impugned in this Writ Petition are hereby quashed. No costs.
(12) Petition allowed.