Skip to content


M.M. Sales and Exports (India) (Pvt.) Ltd. and ors. Vs. the State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 5279 of 1973
Judge
Reported inAIR1974All263
ActsCriminal Law Amendment Ordinance, 1944; India (Provisional Constitution) Order, 1947 - Sections 2(2); Government of India Act, 1935; General Clauses Act, 1897 - Sections 6 and 72; Constitution of India - Articles 123, 366(10) and 372; India and Burma (Emergency Provisions) Act, 1940 - Sections 1(3) and 3; Interpretation Act, 1889 - Sections 38(2)
AppellantM.M. Sales and Exports (India) (Pvt.) Ltd. and ors.
RespondentThe State of Uttar Pradesh and ors.
Appellant AdvocateT.P. Asthana, Adv.
Respondent AdvocateStanding Counsel
DispositionPetition dismissed
Excerpt:
constitution - ordinance - criminal law amendment ordinance( 38 of 1944), india (provisional constitution) order, 1947 repealing 9th schedule of government of india act, 1935, section 6 (b) of general clauses act, 1897 and article 123, 366 (10), 372 of constitution of india - the act of 1940 ceasing to have effect does not affect the continuance of such ordinances which remain in force till repealed. - - 2. learned counsel for the petitioners urged that the criminal law amendment ordinance, 1944 ceased to have force or effect after 15th august 1947 because of the operation of the india (provisional constitution) order, 1947 as well as the india (adaptation of existing indian laws) order, 1947. in order to appreciate these submissions we have to notice certain provisions. it provided..........be controlled or superseded by any such acts.'the british parliament passed the india and burma (emergency provisions) act, 1940 on 27th june, 1940. section 1 (3) of that act stated:'section seventy-two of the government of india act (which as set out in the ninth schedule to the government of india act, 1935 confers on the governor general power to make ordinances in cases of emergency) shall, as respects ordinances made during the period specified is section 3 of this act, have effect as if the words 'for the space of not more than six months from its promulgation were omitted: ............'section 3 referred to in this provision provided :'the period referred to in the preceding section is the period beginning with the date of the passing of this act and ending with such date as his.....
Judgment:

Satish Chandra, J.

1. The principal question raised by this writ petition was whether the Criminal Law Amendment Ordinance, No. 38 of 1944 was in force on 27th July, 1973 when the District Judge, Kanpur passed an ex parte order attaching the petitioners'. Bank account under the provisions of the aforesaid Ordinance. A Bench of this Court while admitting the writ petition directed that since the involved question was of general importance it may be heard and decided by a Division Bench. That is how this writ petition has been listed for hearing before this Bench.

2. Learned counsel for the petitioners urged that the Criminal Law Amendment Ordinance, 1944 ceased to have force or effect after 15th August 1947 because of the operation of the India (Provisional Constitution) Order, 1947 as well as the India (Adaptation of Existing Indian Laws) Order, 1947. In order to appreciate these submissions we have to notice certain provisions.

3. Part II of the Government of India Act, 1935 envisaged the establishment of the Federation of India. Section 317 of the Government of India Act, 1935 continued the provisions of the Government of India Act, 1915 with certain amendments mentioned in Schedule 9 of 1935 Act until the establishment of the Federation. Section 72 of the 9th Schedule conferred upon the Governor-General powers to issue Ordinances in cases of emergency. It provided :

'The Governor-General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof, and any ordinance so made shall for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature: but the power of making ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws: and any ordinance made under this section is subject to the like disallowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Acts.'

The British Parliament passed the India and Burma (Emergency Provisions) Act, 1940 on 27th June, 1940. Section 1 (3) of that Act stated:

'Section seventy-two of the Government of India Act (which as set out in the Ninth Schedule to the Government of India Act, 1935 confers on the Governor General power to make Ordinances in cases of emergency) shall, as respects Ordinances made during the period specified is Section 3 of this Act, have effect as if the words 'for the space of not more than six months from its promulgation were omitted: ............'

Section 3 referred to in this provision provided :

'The period referred to in the preceding section is the period beginning with the date of the passing of this Act and ending with such date as His majesty may by Order in Council declare to be the end of the emergency which was the occasion of the passing of this Act.'

As already seen, this Act was passed on 27th June, 1940. On 1st April, 1946 His Majesty's order in Council was published in the Gazette of India terminating the period of emergency with effect from 1st April, 1946. Thus the period specified under Section 3 of this Act extended from 27th June, 1940 to 1st April, 1946. The Criminal Law Amendment Ordinance No. 38 of 1944 was promulgated on 23rd October, 1944, that is to say in between the specified period.

4. In Hansraj Moolji v. The State of Bombay : 1957CriLJ599 it was held that the effect of the temporary amendment of Section 72 of the 9th Schedule by Sub-section (3) of Section 1 of the India and Burma (Emergency Provisions) Act, 1940 was that during the specified period, namely, 27th June, 1940 to 1st April, 1946 the Governor-General had the power to promulgate Ordinances within unlimited duration. In other words, the qualification that such Ordinances shall cease to have effect after the expiry of six months from its promulgation were non-applicable to Ordinances made during the specified period. If on their terms the Ordinances did not prescribe any period of time on the expiry of which they will come to an end they will be deemed in law to be permanently in force. It was held that the Ordinances thus promulgated were perpetual in duration and continued in force until they were repealed.

5. As already seen, the India and Burma (Emergency Provisions) Act, 1940 effected an amendment to Section 72 for the limited specified period. After 1-4-1946 Section 72 continued to operate in its original form, that is to say, the powers of the Governor-General to promulgate ordinances were subject to the ordinance remaining in force for not more than six months from their promulgation. It was argued before the Supreme Court that with the non-continuance in force of the India and Burma (Emergency' Provisions) Act, 1940 in so far as Section 72 of the 9th Schedule was concerned the necessary effect is that the Ordinances made during the specified period would come to an end and cease to have force after 1st April, 1946. The Supreme Court repelled this submission. It was held:

'The alternative argument addressed before us by the learned counsel for the appellant, need not detain us at all, for the simple reason that reading Section 72 in the manner suggested would be tentamount to giving a retrospective effect to the section as it originally stood in regard to Ordinances which had been promulgated between 27-6-1940 and 1-4-1946. There is nothing to justify such retrospective operation. As regards such Ordinances the period of duration had to be determined having regard to the provisions of Section 72 as they stood with the omission of the words 'for the space of not more than six months from its promulgation,' therefrom during the period specified in Section 3 of the India and Burma (Emergency Provisions) Act, 1940 and the Ordinance in question was therefore not limited to the space of not more than six months from the date of its promulgation but was perpetual in its duration with the result that it continues in operation until it is repealed. There is no warrant for reading the provisions of Section 72 with the omitted words restored to their original position after 1-4-1946 while determining the duration of the Ordinances which had been promulgated between 27-6-1940 and 1-4-1946.'

In this view, the first plea fails.

6. In the alternative, learned counsel for the petitioner urged that the India and Burma (Emergency Provisions) Act, 1940, being an act of Parliament, was not an existing Indian law within meaning of the India (Adaptation of Existing Indian Laws) Order 1947. So, it lapsed on 14th August, 1947, and was not in operation thereafter. The necessary effect and consequence was that the Criminal Law Amendment Ordinances also lapsed. This submission is completely answered by the observations of the Supreme Court quoted above. Section 1 (3) and Section 3 of the India and Burma (Emergency Provisions) Act, 1940, were operative for a limited period only, namely from 27th June, 1940, to 1st April, 1946. They ceased to have any efficacy in relation to the Ordinances promulgated by the Governor-General in between this period after 1st April, 1946. The effect of this inapplicability was considered by the Supreme Court in Hansraj Moolji's case mentioned above. It was held that the result will not be retrospective restoration of the omitted provision of Section 72. The Ordinances issued between the specified period will continue to operate even after 1st April, 1946. The same reasoning applies to the non-continuation of this Act as an existing Indian Law. The Ordinances promulgated between 26th June, 1940, and 1st April, 1946, including the Criminal Law Amendment Ordinances did not lapse after 15th August, 1947.

7. The learned counsel for the petitioner in the alternative argued that the India (Provisional Constitution) Order, 1947 repealed the 9th Schedule of the Government of India Act including Section 72 thereof. With the repeal of the 9th Schedule the Ordinance in question lapsed. It could not remain in operation thereafter. It is true that Section 3 of the India (Provisional Constitution) Order, 1947 read with the schedule attached to it shows that, inter alia, the 9th Schedule of the Government of India Act, 1935 was repealed; but Sub-section (2) of Section 2 of this Order provides that the Interpretation Act, 1889, applies for the interpretation of this Order as for the interpretation of an Act of Parliament. Section 38(2) (b) of the Interpretation Act is in terms similar to Section 6(b) of the General Clauses Act, 1897. It provides that the repeal shall not affect the operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed. In the present case the Governor-General in the exercise of his powers under Section 72 promulgated the Criminal Law Amendmenl Ordinance. Its continued operation will not be affected by the repeal of the 9th Schedule aforesaid. For the petitioners reliance was placed on the State of Uttar Pradesh v. Jagmander Das : AIR1954SC683 . That case is distinguishable. There the Ordinance XII of 1946 itself was repealed by Act II of 1948. It was held that after the repeal of the Ordinance no prosecution could be commenced for contravention of the provisions of the Ordinance. It was also held that Section 6 of the General Clauses Act will have no application to the cases where the law had been repealed or had suffered a natural death. In the present case the Ordinance had not been repealed by any subsequent enactment. Since it had not suffered a natural death, Section 38 (2) (b) saves the continued operation of this Ordinance.

8. Further Article 366(10) defines an 'existing law' to mean any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation. Admittedly, the Criminal Law Amendment Ordinance was promulgated by the Governor-General who had the power to pass or make such an Ordinance and was thus an 'existing law' on 26th January, 1950. Article 372 of the Constitution expressly provides for the continuance in force of existing laws, unless the said law is altered or repealed or amended by a competent legislature or other competent authority. Nothing has been shown that the Criminal Law Amendment Ordinance has been repealed or rescinded by the Parliament of India or by any competent authority. Thus the Criminal Law Amendment Ordinance, 1944 is riot only an 'existing law' within the meaning of Art. 366 (10) but continues to remain in force even today.

9. In the next place, it was argued that the Ordinance lapsed with the commencement of the Constitution of India because it was not laid before the Parliament constituted under the Constitution of India, as provided by Article 123 of the Constitution. Article 123 applies to Ordinances promulgated by the President of India. It has no application to pre-existing Ordinances framed under the Government of India Act. Such Ordinances cannot be held invalid for not having been laid before both Houses of Parliament as required by Article 123.

10. The various points raised in support of the writ petition having failed, the same is dismissed but we make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //