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Prannath Samantarai Vs. Bhagirathi Sahoo - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 89 of 1964
Judge
Reported inAIR1965Ori196; 1965CriLJ657
ActsOrissa Municipal Act, 1950 - Sections 176(1), 290(1), 387 and 387(2); Orissa General Clauses Act, 1937 - Sections 2(28) and 26; Orissa Municipal Rules - Rule 602
AppellantPrannath Samantarai
RespondentBhagirathi Sahoo
Appellant AdvocateP. Palit and ;G.C. Das, Advs.
Respondent AdvocateR.N. Misra and ;S.P. Mohapatra, Advs.
DispositionAppeal dismissed
Cases ReferredGurucharan Singh v. Executive Officer
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........of that section. the expression 'notification' has been defined in clause (28) of section 2 of the orissa general clauses act as meaning a notification in the gazette. section 26 of the orissa general clauses act further says that if any orissa act directs that any order shall be notified, then unless the act otherwise provides, such notification shall be deemed to be duty made if it is published in the gazette. it was admitted in that case and also in this case that there was no publication in the gazette in the manner required by sub-section (1) of section 290. the second proviso to that sub-section further says:'provided further that no notification under this sub-section shall take effect till sixty days from the date of publication thereof.'the learned lower court held that the.....
Judgment:

R.L. Narasimham, C.J.

1. This is an appeal by the Talcher Notified Area Council against an order o acquittal passed by the Sub-divisional Magistrate of Talcher, in a case under Section 386 of the Orissa Municipal Act, for contravention of the provisions of Section 290 (1) (s) of the said Act.

2. The respondent was alleged to have carried on timber business within the limits of Talcher notified Area without obtaining a license--as required by Section 290 (1) (d) of the said Act. The learned Sub-Divisional Magistrate held, on facts, that the respondent carried on the timber business without a license within the limits of Talcher Notified Area. But he acquitted him, relying on a Bench decision of the Court in Gurucharan Singh v. Executive Officer, Jeypore Municipality, 29 Cut L T 611 where it was held that before prosecuting a person for contravention of any of the clauses of Sub-section (1) of Section 290 of the Municipal Act, it must first be established that the local authority concerned issued the requisite Notification under Sub-section (1) of that Section. The expression 'notification' has been defined in Clause (28) of Section 2 of the Orissa General Clauses Act as meaning a notification in the gazette. Section 26 of the Orissa General Clauses Act further says that if any Orissa Act directs that any order shall be notified, then unless the Act otherwise provides, such notification shall be deemed to be duty made if it is published in the gazette. It was admitted in that case and also in this case that there was no publication in the Gazette in the manner required by Sub-section (1) of Section 290. The Second Proviso to that Sub-section further says:

'Provided further that no notification under this sub-section shall take effect till sixty days from the date of publication thereof.'

The learned lower Court held that the respondent was not bound to obtain a license for selling and storing timber for sale within the Notified Area of Talcher, inasmuch as the order of the Municipal Council under Sub-section (1) of Section 290 was not duly notified as required by that sub-section.

3. Mr. Palit, on behalf of the Notified Area Council invited my attention to Rule 602 of the Orissa Municipal Rules which runs thus :

'602--Every notification required to be published by the Municipal council under the Act, shall be published in Oriya by affixture on the notice board of the Municipal Office concerned and also proclaimed by beat of drums.

(2) Every notification required to be published by the State Government in the prescribed manner, shall be published in English in the Gazette.'

Mr. Palit urged that if the provisions of the Orissa Municipal Act are read with the provisions of Rule 602 of the Orissa Municipal rules, the reasonable interpretation would be that where any notification is required to be published by the Municipality it need not be published in the gazette and that it would suffice if it is published in Oriya by affixture on the notice board of the Municipal Office and it also proclaimed by beat of drum. In the present case, it is not denied that the notification under Sub-section (1) of Section 290 of the Orissa Municipal Act was duly published by affixture on the notice Board of the Notified Area office and was also proclaimed by beat of drum. Mr. Palit therefore urged that such notification must be deemed to have come into force within sixty days of such publication and proclamation.

4. In my previous decision, 29 Cut L T 611 the effect of Rule 602 of the Orissa Municipal Rules was not considered because my attention was not drawn to the said provision. But having considered the matter once again in the light of Rule 602 I see no reason to change my previous view so far as the requirement about publication of the notification under Section 290(1) of the Act in the Gazette is concerned. The definition of the expression 'notification' in the Orissa General Clauses Act (which is clear and unambiguous) is that 'notification' shall mean notification in the gazette. This definition would apply for the construction of the expression notification in any Orissa Act unless there is anything repugnant in the subject or context. There is nothing in the subject or context of Sub-section (1) of Section 290 of the Orissa Municipal Act which would be repugnant to the adoption of such a definition in interpreting the word 'notification'. On the other hand, the Orissa Legislature has been very careful to insert appropriate words whenever it intended that in any other provision of the Act the definition given in Orissa General Clauses Act should not apply. For instance Section 158 of the Orissa Municipal Act is as follows :

'158: By notification to be posted up in their Office, the Municipal Council shall declare at what hours of each day (not being a Sunday) or other recognised holidays) the office shall be open for the receipt of money and the transaction of business'.

Mere, by expressly inserting the words ''to be posted in their Office' The Legislature made it clear that the definition of the expression notification as given in Section 2 (28) of the Orissa General Clauses Act cannot apply in construing the same expression in Section 158 because that wilt be repugnant to the subject and context. If the intention of the legislature was that in Section 290 (1) also, the notification should be interpreted as provided in the rules, the legislature would have used such expression as 'published in the prescribed manner' as found in Section 178 (1) of the Act. In the absence of any such words the interpretation given in the Orissa General Clauses Act should apply.

5. Doubtless, as Rule 802 requires every notification by the Municipality to be published in Oriya by affixture on the notice Board of the Municipal Office concerned and also proclaimed by beat of drum, a notification under Section 290 (1) of the Orissa Municipal Act will have to be published both in the Orissa Gazette and also by affixture in the notice board of the Municipal office and also proclaimed by beat of drum. In other words, the requirements of the Orissa General Clauses Act and of Rule 602 should both be complied with.

6. Mr. Palit contended with great ingenuity that the Orissa Municipal Rules were made by the State Government in exercise of the rule-making power conferred by Section 337 of the Act, that these rules were duly published in the Gazette and hence they had the same force as the provisions in the Orissa Municipal Act According to Mr. Palit, therefore, in substance, Rule 602 of the Orissa Municipal Rules must be deemed to be a provision in the Orissa Municipal Act itself : and consequently if Section 290 (1) is construed along with Rule 602 it must be held that an interpretation of the word 'notification' as defined in Section 2 (23) of the Orissa General Clauses Act, will be repugnant to the subject or context.

7. I am unable to accept this argument. It is true that if a rule under an Act is validly made, it has the force of law as provided in the last clause of Section 387 (2) of the Orissa Municipal Act; and in a sense it may be said to have the same force as a provision in the Act itself. But a construction given to an expression in a rule cannot be applied while construing the same expression occurring in the parent Act unless there are indications in the parent Act itself to that effect. In the absence of such indication the definition given in the General Clauses Act must apply to the construction of the same expression occurring in the parent Act. There might have been some force in Mr. Palit's contention if in the rule making power conferred on the State Government by Section 387 of the Orissa Municipal Act express provision had been made authorising Government, by rules, to define what shall be deemed to be made by 'notification' not only for the purpose of the Rules but also for the purpose of the Act; but no such power is conferred by that section. Moreover Section 28 of the Orissa General Clauses Act says that the notification shall unless the Act otherwise pro-vides be deemed to be duly made if it is published in the Gazette. It does not say 'unles this Actor rules made thereunder.' In this connection the slight difference in language in the corresponding provision of the Bombay General Clauses Act 1904 (see Section 23) may be seen. There, the words used are 'unless the enactment or rule otherwise provides'. In the Assam General Clauses Act, 1915 (see Section 22) and in the Bihar & Orissa General Clauses Act (see Section 23) the language used is similar to that used in the Orissa Act. Hence by merely providing in a rule for a different method of publication, a notification required to be made under the provisions of the Act cannot be deemed to have been validly made unless there is actual publication in the Gazette.

8. For these reasons, I would, in agreement with the lower Court, hold that there was no valid notification under Section 290 (1) of the Orissa Municipal Act and consequently the question of contravention of that section does not arise.

The order of acquittal is maintained and theappeal is dismissed.


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