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The State Vs. Nanak Chand - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1970CriLJ651
AppellantThe State
RespondentNanak Chand
Cases ReferredState v. Kunia Behari Chandra
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the..........called the act) for keeping their establishments open beyond the hours prescribed by the punjab government (labour department) notification no. 2435-lab-i-61/11527, dated 25th april, 1961. this notification was issued under the third proviso to section 9 of the act, which, as amended by punjab act 25 of 1958 read as follows on that day:9. opening and closing hours.--no establishment shall, save as otherwise provided by this act, open earlier than ten o'clock in the morning or close later than eight o'clock in the evening;provided that any customer who was in the establishment before the closing hour may be served during the period of fifteen minutes immediately following such hour;provided further that the state government may, by order and for reasons to be recorded in.....
Judgment:

Gurdev Singh, J.

1. This order will dispose of six criminal appeals (Nos. 848, 849, 850, 852 and 854 of 1966) which involve a common question of law for decision. The respondents in all these cases are running shops or commercial establishments in Ambala Cantonment. They were prosecuted under Section 26 read with Section 9 of the Punjab Shops and Commercial Establishments Act 15 of 1958 (hereinafter called the Act) for keeping their establishments open beyond the hours prescribed by the Punjab Government (Labour Department) notification No. 2435-Lab-I-61/11527, dated 25th April, 1961. This notification was issued under the third proviso to Section 9 of the Act, which, as amended by Punjab Act 25 of 1958 read as follows on that day:

9. Opening and closing hours.--No establishment shall, save as otherwise provided by this Act, open earlier than ten o'clock in the morning or close later than eight o'clock in the evening;

Provided that any customer who was in the establishment before the closing hour may be served during the period of fifteen minutes Immediately following such hour;

Provided further that the State Government may, by order and for reasons to be recorded in writing, allow an establishment attached to a factory to open at eight O'clock in the morning and close at six O'clock in the evening;

Provided further that the State Government may, by notification in the official Gazette, fix such other opening and closing hours in respect of any establishment or class of establishments, for such period and on such conditions, as may be specified, in such notification.

2. As a result of further amendment of the Act by Punjab Shops and Commercial Establishments Act 1 of 1964 in place of this section the following section bearing the same number was substituted:

9. Opening and closing hours.--Government shall by notification fix the opening and closing hours of all classes of establishment; and different opening and closing hours may be fixed for different classes of establishments and for different areas:

Provided that Government may allow an establishment attached to a factory to observe such opening and closing hours as the Government may direct.

3. Admittedly no notification under this new section applicable to the respondents' shops or establishments situate in Ambala Cantonment, was in existence on the day the respondents were prosecuted as none had been issued after the Act was amended in the year 1964. The prosecution rested its case on the notification dated 25th April, 1961, to which reference has been made earlier. It provides that:

All shops and commercial establishments in the State of Punjab except those for which separate timings had been fixed shall not open earlier than 9 O'clock in the morning and close later than 7.45 O'clock in the evening.

4. The Judicial Magistrate First Class, Ambala who tried the respondents, however, acquitted them being of the opinion that no notification having been issued under Section 9 of the Act as it stood as a result of the amendment of the year 1964, the respondents had not committed any offence and the notification issued prior to the amendment was no longer operative on the day the amending Act came into force. In coming to this finding the learned Magistrate appears to have ignored Section 22 of the Punjab General Clauses Act, which provides:

Where any Punjab Act is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment notification, order, scheme, rule, form or bye-law made or issued under the repealed Act, shall, so far as it is 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, form or bylaw made or issued under the provisions so re-enacted.

5. The notification for the violation of which the respondents were prosecuted was issued under Section 9 of the Act. On comparison of that provision, as it stood at the time this notification was issued, with Section 9 as substituted by the amending Act 1 of 1964, it will be seen that the authority conferred upon the Government by these two provisions to issue notification fixing opening and closing hours is identical and not in any way inconsistent. In these circumstances, Section 22 of the Punjab General Clauses Act is attracted, and as enacted therein, the relevant notification, dated 25th April, 1961, must be deemed to have been issued under the re-enacted Section 9, and any violation thereof could be punishable under Section 26 of the Act. In R.B. Ram Rattan Seth v. State , Falshaw J. (as he then was) held that the Indian Metalliferous Mines Regulations of 1926 framed under Section 29 of the Indian Mines Act 1923, which had since been repealed and replaced by the Indian Mines Act of 1952 and under which no rules and regulations had by then been framed, were kept alive by Section 24 of the General Clauses Act, which is similarly worded as Section 22 of the Punjab General Clauses Act. This view is in consonance with the view taken by a Full Bench of the Patna High Court in State v. Kunia Behari Chandra : AIR1954Pat371 (FB) and by a Division Bench In re Lingareddy Venkatareddy AIR 1956 Andh Pra 24. It is thus obvious that the premises on which the trial Court has proceeded to acquit the respondents is wrong and the orders of their acquittal cannot be sustained. Since the Court below has not recorded any finding on merits, the cases must go back. We, accordingly, accept the appeals, and setting aside the impugned orders, remit the cases to the Chief Judicial Magistrate, Ambala, for trial in accordance with law.

S.S. Sandhawalia, J.

6. I agree.


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