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Manilal R. Pandya Vs. Chimanlal Parshottamdas and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtGujarat High Court
Decided On
Case NumberCriminal Revn. Appln. No. 5 of 1967
Judge
Reported inAIR1968Guj80
ActsPrevention of Food Adulteration Act, 1954 - Sections 16(1) and 24; General Clauses Act, 1987 - Sections 23(1); Gujarat Prevention of Food Adulteration Rules, 1961 - Rules 1 and 5; Bombay Re-orgainsation Act, 1960 - Sections 89; Code of Civil Procedure (CPC) (1908)
AppellantManilal R. Pandya
RespondentChimanlal Parshottamdas and anr.
Appellant Advocate S.B. Vakil, Adv.
Respondent Advocate S.B. Vakil, Adv. and; K.M. Chhaya, Asst. Government Pleader
Excerpt:
criminal - food adulteration - sections 16 (1) and 24 of prevention of food adulteration act, 1954, section 23 (1) of general clauses act, 1987, rules 1 and 5 of gujarat prevention of food adulteration rules, 1961, section 89 of bombay re-organisation act, 1960 - magistrate discharged opponent from offence under section 16 (1) (a) (ii) on ground that gujarat prevention of food adulteration rules not valid - revision filed against said order - publication of draft rules by government prior to bifurcation of state in sufficient compliance with section 23 (1) and gujarat prevention of food adulteration rules - publication amounts to sufficient publication under section 24 - no provision of law requiring state government to publish statements that amendment was made after consultation with.....vakil, j.(1) this criminal revision application arises out of the order passed by the city magistrate, 6th court, ahmedabad discharging the opponent no. 1 of the charge of having committed an offence under section (16) (1) (a) (ii) of the prevention of food adulteration act, 1954 (hereafter referred to as 'the act') on the ground that the gujarat prevention of food adulteration rules, 1961 were not valid as they were not previously published as required by section 24 of the said act. the learned magistrate held that it is an admitted position that the draft rules were not published by the government of gujarat and the fact of the draft rules having been published by the government of bombay, before bifurcation, cannot be considered to be a compliance with the requirement of prior.....
Judgment:

Vakil, J.

(1) This Criminal Revision Application arises out of the Order passed by the City Magistrate, 6th Court, Ahmedabad discharging the opponent No. 1 of the charge of having committed an offence under section (16) (1) (a) (ii) of the Prevention of Food Adulteration Act, 1954 (hereafter referred to as 'the Act') on the ground that the Gujarat Prevention of Food Adulteration Rules, 1961 were not valid as they were not previously published as required by section 24 of the said Act. The learned Magistrate held that it is an admitted position that the draft rules were not published by the Government of Gujarat and the fact of the draft rules having been published by the Government of Bombay, before bifurcation, cannot be considered to be a compliance with the requirement of prior publication. It was necessary for the Government of Gujarat to publish the draft rules before publishing the final rules. The learned Magistrate relied on the decision of this Court by Raju J. In Criminal Appeal No. 267 of 196: (1968) Cri LJ 253 Guj.). The learned Magistrate has also held that the rules were amended by the Gujarat State Government on the 27th of April 1964 and it is nowhere mentioned therein that those amendments were made in consultation with the Committee. Section 24 of the Act requires consultation with the Committee before the rules are framed. The amendment sought to have been made after consultation with the Committee. Want of such consultation also goes to the root of the validity of the Rules.

(2) The main question that arises for our consideration is whether the Gujarat Prevention of Food Adulteration Rules, 1961 made by the Government of Gujarat are valid and enforceable rules.

(3) Before we deal with the question, it will be expedient to refer to some of the relevant provisions of law and to a few facts as to how the question arose in the present case. The petitioner is the Food Inspector of the Ahmedabad Municipal Corporation. Having come to know that the first opponent was carrying on the business of storing and selling 'Papad' an article of food prepared from 'Adad-Dal' flour without obtaining the necessary sanction, filed a compliant for the offence punishable under section 16(1)(a)(ii) of the Act. The opponent No. 1 who is the accused in the said complaint, raised a preliminary contention before the framing of the charge that as there were no valid rules framed by the Gujarat State Government, for getting such a licence, he should not be said to have committed breach of any rule or law and no offence could be said to have been committed and therefore no charge could be frame. The said contention was heard and decided in his favour as stated above and hence the order of discharge was passed. The petitioner-Food Inspector has therefore filed this revision application against the said Judgment and order of discharge.

(4) On the 29th of September 1954, the Prevention of Food Adulteration Act was enacted by the Central Government and it came into force on 1st of June 1955. S. 23 of the said Act gives power to the Central Government to make rules. By virtue of this authority Government of India framed the Prevention of Food Adulteration Rules, 1955. Rule 50 (1) provides that no person shall manufacture, sell, stock, distribute or exhibit for sale the various articles of food mentioned therein except under a licence. Sub-rule (2) thereof lays down a duty on the State Government or the local authority to appoint licensing authorities. Section 24 of the Act provides for the power of the State Government to make rules. Sub-section (1), sub-section (2), clauses (a) and (b) are relevant for our purpose and they may be reproduced:

'24(1) The State Government may, after consultation with the Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in matters not falling within the purview of section 23.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may--

(a) define the powers and duties of the Food (Health) Authority and local authority and jurisdiction of food inspectors and public analysts:

(b) prescribe the form of licences for the manufacture for sale, for the storage, for the sale and for the distribution of articles of food or any specified article of food or class of articles of food, the form of application for such licences, the conditions subject to which such licences may be issued, the authority empowered to issue the same and the fees payable therefore;..................................'

Pursuant to these powers, the State Government of Bombay before bifurcation framed the draft rules and published them by a notification dated 14th January 1959. It stated:

'The following draft of a notification which it is proposed to issue in exercise of the powers conferred by section 24 of the Prevention of Food Adulteration Act, 1954 (37 of 1954), is hereby published as required by sub-section (1) of the said section 24 for the information of all persons likely to be affected thereby and notice is hereby given that the said draft will be taken into consideration on or after 28th day of February 1959.

Any objections or suggestions which may be received by the Secretary to the Government of Bombay, Local Self-government and Public Health Department, from any person with respect to the said draft on or before the aforesaid date will be considered by Government'.

Below this, draft notification of the rules is published.

(5) Before, however, the Rules could be framed, on the 25th of April 1960, Parliament enacted the Bombay Reorganisation Act, 1960 (II of 1960) and by virtue thereof, on the 1st of May 1960, the State of Bombay was bifurcated and the State of Maharashtra and the State of Gujarat came into existence.

(6) On the 23rd of August 1961, the State of Gujarat issued a notification and published the Gujarat Prevention of Food Adulteration Rules, 1961. The Preamble of the notification may be stated:

'In exercise of the powers conferred by section 24 of the Prevention of Food Adulteration Act, 1954 ( 37 of 1954) and of all other powers enabling it in this behalf and in suppression of all rules made in this behalf under the corresponding laws repealed by section 25 of the said Act and still in force, the Government of Gujarat after consultation with the Central Committee for Food Standards hereby makes the following rules, namely:''

This notification was published in the Gazette on the 31st August, 1961 and the rules came into force on the 1st of September 1961.

(7) Section 24 of the Act which authorises the making of the rules by the State Government lays down two conditions to be complied with before making the rules.

(i) That the State Government will consult the committee and

(ii) That the rule will be made 'subject to the condition of previous publication.'

The trail Court has held that that second condition has not been complied with by the State Government of Gujarat and therefore the Gujarat Prevention of Food Adulteration Rules, 1961 are invalid and unenforceable. Further that these rules were amended substantially and the prosecution was under the amended rules were amended rules, noting is Stated in the publication of the amended rules to the committee and therefore also the prosecution could not be sustained.

(8) Mr. S. B. Vakil, the learned Advocate for the applicant has challenged this finding of the learned Magistrate on the following Submissions:

(i) That the phrase 'subject to the condition of previous publication' in section 24 of the Act is to be given the meaning as provided by the Central Legislature in section 23 of the General Clauses Act, 1897. On proper construction of the clause (5) on the said section 23, the publication in the Official Gazette of the Gujarat Prevention of Food Adulteration Rules which purport to have been made under section 24 of the Prevention of Food Adulteration Act, should be considered to be conclusive proof of the fact that the said Rules have been duly made. It is not open to any one urge that they are not duly made even on the ground that there has been no previous publication. It also excludes judicial review and gives finality to the rules.

(ii) That the publication of the draft rules by the Government of Bombay prior to the bifurcation of the State, is sufficient compliance with clause (1) of section 23 of the General Clauses Act and the Gujarat Prevention of Food Adulteration Rules, cannot be challenged on the ground that there has been no previous publication of the draft rules as required by section 24 of the Act.

(iii) That proper construction should he placed on section 24 of the Act so as to facilitate its application to the matter before this Court by virtue of the authority given to the Court under the provisions of section 89 of the Bombay Reorganisation Act, 1960.

(iv) There is no provision of law which requires a statement to be made by the State Government while publishing the amended rules that they were made after consultation with the Central Committee for food standards and that absence of such statement cannot make the rules invalid.

(9) We prefer not to deal with the first submission made by Mr. Vakil on the point of previous publication, which is a much wider submission than the other two as we have come to the conclusion that the matter before us can be disposed of on the consideration of these two submissions and it is not necessary for us to also decide the first submission.

(10) Dealing with the second submission, it was urged on behalf of the petitioner that section 23 of the General Clauses Act, 1897 lays down the provisions applicable to the making of Rules after previous publication. Therefore, when section 24 of the Act provides that the State Government may, subject to the condition of previous publication make rules, and when the question arises whether this condition has been complied with or not, one has to turn to section 23 of the General Clauses Act to answer that question. The expression 'previous publication' has thus been given a statutory meaning and it has to be construed accordingly. This proposition is not disputed before us. At this stage, it would be convenient to reproduce section 23 of the General Clauses Act.

'23. Where, by any Central Act or Regulation a power to take rules or bylaws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:

(1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby.

(2) the publication shall be made in such manner as that authority deems to be sufficient or, if the condition with respect to previous publication so requires, in such manner as the Government concerned prescribes.

(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration.

(4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws form any person with respect to the draft before the date so specified

(11) The submission on behalf of the petitioner was that in this case, it is not that the draft of the proposed rules before making the rules, was not published for the information of person likely to be affected thereby. The draft of the proposed Prevention of Food Adulteration Rules was published by the State Government of Bombay when the City of Ahmedabad was also a part of the State of Bombay and after bifurcation of the State of Bombay into the two states of Maharashtra and Gujarat, the State Government of Gujarat made and published the Prevention of Food Adulteration Rules without changing the substance of the rules published in the draft by the then State Government, to which the State Government of Gujarat was in essence, the successor in relation to the territory comprised in this State. Therefore, on a proper contraction of clause (1) of Section 23, there is sufficient compliance with these provisions.

(12) On the other hand on behalf of the Opponent Mr. Adhvaryu submitted that it was not disputed that the State Government of Bombay had published the draft rules but the title thereof indicated that they were to be called the Bombay Prevention of Food Adulteration Rules, 1958, while the rules made are known as the Gujarat Prevention of Food Adulteration Rules, 1961. But the more serious objection was that clause (1) of section 23 of the General Clauses Act requires that the draft rules must be published by the State Government which ultimately makes the rules and as the draft rules were not published by the State Government of Gujarat, clause (1) of S. 23 has not been complied with and consequently the condition precedent to the making of the rules laid down in section 24 of the act cannot be said to have been complied with. The rules are therefore invalid. Section 23(1) of the General Clauses Act does not admit of any other construction.

(13) These rival contentions raise the question of proper construction of clause (1) of section 23 of the General Clauses Act, 1897. The submission on the part of the opponent canvasses for the proposition that the said provision of law is capable of only one meaning namely it is the State Government which actually makes the rules, should also publish the draft rules and therefore no question of construing clause (1) of S. 23 arises. We are unable to accept this submission. It cannot be said that it is the only meaning which the clause is capable of. Clause (1) of S. 23 concerns publication. The publication is to be before the making of the rules. The publication is to make the publishing rules should, at the time of the publication, have the power to make the rules. The question however is whether clause (1) further requires that the authority which publishes the rules. This depends upon the true scope and meaning of the expression ' before making them'. Does this indicate the time or state publication or does it go further and lay down the condition that the authority making the rules and the authority publishing the rules must be the same? No doubt, one of the possible constructions is that the expression used is not ' before the rules are made' but ' before making them' in its active tense. This more probably not may indicate that the authority which publishes the rules is also the authority which makes the rules is required to publish the proposed rules before it makes them. But this construction, in our view, sufferers form one serious infirmity. On construction the expression 'them' refers to the rules made. If the meaning attached to the expression 'before making them' is that indicate identity of making and publishing authority, it must necessary follow from the world 'them' that there is identity in the rules made and the object of the section because the main object of previous publication is invite objections and consider them, which means that the rules made may not, and are not, expected to be only a reproduction of the rules pre-publication is therefore a preparation for the making of the rules. There is no compelling necessity in the object of the publication to require that the authority which in fact makes the rules must in fact have published them. The only compelling necessity is that the authority which published the rules, had at the time of publication also the power to make rules. In our view, the other construction of which clause (1) is capable as indicated above, is that the publication of the rules is contemplated to be made by the authority having the power to make the rules at the date when the draft rules are published. The expression 'power to make rules' is reliable to the authority entitled to make such rules on the date when such draft rules are published. There is no dispute that on the date the draft rules were published, the Government of Bombay had the power to make the rules for the City of Ahmedabad with which we are concerned in this case. The main object and purpose of publication is that before the rules are made, an opportunity should be given by the authority to those who may be affected by them to object to all or any of them or make suggestions to alter or modify them. Further, that before the rules are finally put into effect, objections so received should be considered by the authority making the rules and on consideration of such objections suggestions etc. if the authority does not find it necessary in its discretion to make any substantial charge, then it may finally make the rules. If this be the purpose, and in our view it is, then the present case also fulfils the requirements of these provisions. The city of Ahmedabad was a part of the territory of the State of Bombay when the draft of the proposed rules was published, the persons concerned within that territory got the opportunity intended and then the rules were finally made. There is nothing to assume that the objections, if any, received were not considered by the State Government that made the final rules. In our view, therefore, clause (1) is capable of two constructions and the proper approach would be to adapt that construction which fulfils the main object and purpose of the section. The former construction would involve waste of time and statutory effort and is not really called for to carry into effect the purpose of pre-publication. During the interval before the publication of the proposed rules and the making of them the law may change the repository of the power of making the rules. If the authority so newly vested with the power, cannot take advantage of the previous publication which was made by the then competent authority, the exercise of the power of pre-publication would have been in vain. Similarly the objections already received will not be required to be considered and would be made useless. This could not be the intention of the Legislature as it would take away from the effectiveness and purpose of the section.

(14) In our judgment, therefore, having regard to the object and purpose of the provision, it would be better to adopt the construction that what clause (1) requires is that the publication of the draft rules has to be made by the authority which as the power to make rules at the date of such publication and that it does not also require that the previous publication must be made by the authority finally making the rules.

(15) As regards the argument on behalf of the opponent, that the draft rules were published as the Bombay Food Adulteration Rules, 1958 and that the rules published by the Gujarat Government are called the Gujarat Prevention of Food Adulteration Rules 1961, and therefore the draft rules published cannot be availed of by the government, we do not find any force therein. The change in the title is only consequent upon the formation of the separate State of Gujarat out of the former State of Bombay. The title was not any part of the provisions of the rules which would adversely affect the persons concerned or introduce any change in the rules themselves. Besides it is not the case of the opponent and we have also been not pointed out that there is any substantial change made in the rules by the Gujarat Government while publishing them as final rules so as to require them to be again published as draft rules in order to invite objections.

(16) Reliance was placed by the opponent on a decision of this Court in Criminal Appeal No. 267 of 1965, D/- 10-9-66 = (1968 Cri LJ 253 Guj) by Raju, J. But we find that in the said judgment, the construction of clause (1) of section 23 of the General Clauses Act was not directly canvassed for and no decision was given on that point. As it appears from the said judgment, the point urged was that in section 24 of the Act, 'the State Government' means the State Government on the date of the previous publication which had the power to make rules on the date of the previous publication. The said contention has been rejected but the learned Judge has neither discussed nor given any reasons for rejecting this plea. As we have observed, the expression 'after previous publication' in section 24 has the same meaning as provided in section 23 of the General Clauses Act. We have put our construction on clause (1) of section 23 as above. The result is that in view of the construction placed by us, the previous publication by the State Government of Bombay of the draft rules complies with the requirement of clause (1) of section 23 and consequently of the requirement of 'previous publication' contained in section 24 of the Act. We are therefore with respect, not able to agree with Raju, J.

(17) On behalf of the petitioner, the third submission, as indicated, was made as an alternative submission, that even if the Court were not to agree that clause (1) should be construed as we have, even then the rules could not be held to be invalid. In support of that submission, it was urged that Parliament, envisaging difficulty due to the bifurcation of the old State of Bombay, in the application and enforcement of provisions of law made before bifurcation, to the territories two new states of Maharashtra and Gujarat, introduced in the Bombay Reorganisation Act, 1960, sections 88 and 89. Section 88 authorises the appropriate Governments to adopt and modify any law made before the appointed day i.e., the first of May 1960, for the purpose of facilitating its application in relation to the State of Maharashtra or Gujarat within one year of the appointed day. Thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority. Similarly as a matter of experience and further precaution. Parliament also thought it necessary to invest the Courts, tribunals and authorities empowered to enforce laws, with the power to construe laws made before the appointed day as may be deemed necessary or proper without affecting its substance, in order to facilitate the application of such laws in relation to the two new States in regard to any matter coming before them. Though by section 88 extraordinary powers are vested in the executive namely the Government to adapt and modify any law to facilitate its application to the new States, the non obstinate clause in section 89 shows the anxiety of the Parliament to see that as questions were bound to arise in numerous ways in relation to hundreds of matters in respect of application of a large number of laws in existence before the appointed day, mere technicalities should not be allowed to come in the way of application of those laws or render ineffective, things done thereunder. In order to achieve this object and to facilitate the application of such laws in the administration of justice, it has vested the extraordinary power of construction in Courts, tribunals and authorities which have to enforce the laws. It is submitted that having regard to Section 89 of the Bombay reorganisation Act, the Court should interpret the phrase 'State Government' in section 24 in the application of the said section to this matter to include 'the State Government of Bombay'.

(18) We find substance in this submission made on behalf of the applicant. Sections 88 and 89 are as follows:

'88. Power to adapt laws:- For the purpose of facilitating the application in relation to the State of Maharashtra or Gujarat of any law made before the appointed day, the appropriate Government may, before the expiration of one year from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and there upon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent legislature or other competent authority.

Explanation - In this section, the expression 'appropriate Government' means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law, the State Government.

89. Power to construe laws:- Notwithstanding that no provision or insufficient provision has been made under section 88 for the adaptation of a law made before the appointed day, any Court, Tribunal or authority. Required or empowered to enforce such law may, for the purpose of facilitating its application in relation to the State of Maharashtra or Gujarat construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the Court, Tribunal or authority.'

(19) In the matter before us, the question has arisen as to whether the State Government can be said to have made the Gujarat Prevention of food Adulteration Rules, 1961 in compliance with the provisions of section 24 of the Prevention of Food Adulteration Act, 1954 which enjoins previous publication of draft rules. So there is no dispute that S. 24 is sought to be enforced in its applicability to the State of Gujarat in respect of the matter on hand. There is also no dispute that there has been such previous publication before the appointed day by the Government of Bombay and the Government of Gujarat did not make such previous publication but relied on the previous publication made by the Government of Bombay and made the final rules. The contention is that for want of previous publication by the Government of Gujarat, the rules are not validly made by the Government of Gujarat and therefore they are unenforceable. The point that arises for our consideration is, can this technicality be obviated by placing a proper construction as required by section 89 of the Bombay Reorganisation Act, 1960. As already discussed, the purpose of the requirement of previous publication of the draft rules is to make known the proposed rules to those who may be affected by them and give them the opportunity to object to them or to make suggestions so as to enable the Government to take them into consideration before finally publishing and putting into before finally publishing and putting into force the rules. No , when the Government of Bombay published the draft rules, in our view, the purpose of this provision of law was fulfilled because Ahmedabad being within its territory, people likely to be affected had the opportunity to put in their objections. The only flaw, if at all, is that after bifurcation, the Government of Gujarat did not again publish the draft rules. The submission is that this is a fit case to apply the to exercise the power of construction under section 89 of the Bombay Reorganisation Act and put a proper construction on the phrase 'State Government' so as to include the prior State Government of Bombay for the purpose of application of the provisions of section 24, particularly for the compliance of one of the requirements of section 24 namely the prior publication of the draft rules. No doubt, the State Government of Gujarat could have published the draft rules after bifurcation be the point is whether it is such an omission as could not be remedied buy the exercise of the right acquired of construction especially to facilitate the application of section 24 and giving effect to its provision in the case on hand. In our view, this is a proper and fit case having regard to the purpose of the provision of previous publication and other relevant provisions of law, where section 89 should be applied. In the making of the rules, there are various things to be done viz., the publication of the draft rules, consideration of the objections if any, consultation with the Committee and then finally making the rules. We are of the view, the construction to be placed on the phrase 'The State Government' is that it shall mean with regard to acts done before the appointed day, the Government of Bombay and with regard to things done from the appointed day, the Government of Gujarat or the Government of Maharashtra, as respects the territories falling within the respective States. Under this interpretation, the phrase 'State Government' would include the State Government of Bombay at the stage of previous publication and the State of Gujarat for other stages. In the decision of Sidhpur Electric Industrial Co. Ltd. V. State of Gujarat, ILR (1964) 5 Guj 647, this Court had a similar situation to tackle. In the said case, question of application of section 89 of the Bombay Reorganisation Act did not arise but almost a similar provision in the Baroda State (Application of Laws) Order, 1949 came in for consideration and it would be useful to refer to some of the observations made in the said decision. The question that arose before this Court in that case was whether the licence in favour of the Sidhpur Electric Company granted by the State of Baroda under the Baroda Electricity Act of Samvat year 1964 did or did not become a licence within the meaning of the Indian Electricity Act 1910 after the merger of Baroda State. The contention on behalf of the Sidhpur Electricity Co. Was that the effect of the provisions of th Baroda Electricity Act. Of Samvat year 1983 did not become a licence under the Act of 1910. On the other hand Mr. Sompura the learned Assistant Government Pleader contended that the licence was saved under Paragraph 14 of the Order. That paragraph was as follows:

'Construction of law: for the purpose of facilitating the application of any provisions of any enactment extended to the Baroda State under paragraph 3. Any Court Tribunal, or authority may construe the same and any notifications, orders, schemes rules, forms or by-laws thereunder with such alterations, not affecting the substances as may be necessary or proper to adapt them to the matter before the Court. Tribunal or authority.'

The contention of Mr. Sompura was that the aforesaid provision was deliberately introduced in order that the authorities mentioned therein may adapt the laws repealed to the matters appearing before them as it was not possible for the Order-making authority to introduce, in one sweep, all the adaptations which otherwise would be required to be made specially when more than about 100 Acts were being applied to the new territory and the corresponding laws repealed. By paragraph 3. The whole of the Act of 1910 was applied including section 58 of that Act. That section was as follows:-

'Repeals and savings.

(1) The Indian Electricity Act. 1903, is hereby repealed:

Provided that every application for a license made and every license granted under the said Act shall be deemed to have been made and granted under this Act.

(2) Nothing in this Act shall be deemed to affect the terms of any license which was granted, or of any agreement which was made, by or with the sanction of the Government for the supply or use of electricity before the commencement of this Act'.

Mr. Sompura further contended that as this section was not omitted by paragraph 3 aforesaid and it was applied to the territory of Baroda, the section should be adapted to suit the repeal of the Baroda Electricity Act of Samvat Year 1983. It was necessary to do so in order to save licences granted under the repealed Act, just as the Act of 1910 saved licences granted under the Indian Electricity Act of 1903. The learned Judge has observed:

'If the section is adapted in the above manner, it is clear that the consequence mentioned in section 58 of the Indian electricity Act, 1910, will follow. The Indian Electricity Act, 1903, corresponded to the Baroda Electricity Act of Samvat 1983 corresponded to the Indian Electricity Act of 1910. Therefore, in effect, what was being done was that, when the Baroda Electricity Act of Samvat 1983 was repealed and the Act of 1910 was applied to the Baroda in the law regulating the supply of electricity in the Baroda territory. From that point of view, it may be said that the substitution of the Baroda Electricity Act of Samvat 1983 for the Indian Electricity Act of 1903 may not be appropriate. But, at the same time, tin our judgment, having regard to the fact that the order making authority cannot be expected to include in one sweep all the minor points in that Order which would govern each and every Act, it is not unreasonable to adapt section 58 in the manner suggested by Mr. Sompura, Such an adaptation is obviously necessary to facilitate the application of the Act of 19190. Otherwise section 58 of the Act would become inapplicable to Baroda territory altogether although it is clear that the Order-making authority did intend that it should apply to that territory'.

It followed, therefore, that under, the proviso to section 58(1) of the Act, 1910, the licence granted under the Act of Samvat 1983 would continue to be a licence under the Act.

(20) It can be seen from the said judgment that on the merger of the State of Baroda with the Province of Bombay, the question of adaptation and construction of certain laws in force in the province of Bombay which came in force in the State of Baroda on the merger, came in for consideration by the Court and under a provision very similar to the one under section 89 of the Bombay reorganisation Act, 1960 a construction was placed to make the said law applicable to the matter on hand which could not have been done but for the said provision investing the Court with that extraordinary power of construction of law in order to avoid injustice or hardship arising due to the extraordinary circumstances of merger. In our case, it arises out of circumstance of bifurcation of the State instead of a merger. The provisions of the Act and the rules are designed to prevent the anti-social-activity which is so extensively prevalent at present. A large number of cases filed under the Act would fail if this technical objection is allowed to stand. In our view, also the purpose for which the requirement of previous publication is introduced in section 24 of the Act, has been compiled with by the previous publication of the draft rules by the Government of Bombay, in the larger interest of the public and for the enforcement of the law existing prior to the appointed day, this is a fit case in which the powers vested in the Court under section 89 of the Bombay reorganisation

Act, 1960 should be exercised.

(21) Mr. Adhvaryu relied upon the above stated decision of this Court in Criminal Appeal No. 267 of 1965 :(1968 Cri LJ 253 Guj) of Raju J. Wherein a different view has been taken. A similar contention was raised on behalf of the appellant- the food Inspector of the godhra Borough Municipality. The learned Judge conceded in his observations that it was true that section 24 of the Prevention of Food Adulteration Act was sought to be enforced. The learned Judge has then observed as follows:-

'But this Court cannot construe the said section 24 to mean that the rules made by the Gujarat State Government, without previous publication would be law, although the previous publication was made by the Bombay State Government. There was nothing to prevent the Gujarat Government from making a publication were made by Bombay State had not become rules and had not become law. The Court cannot construe section 24 of the Prevention of Food Adulteration Act to mean that the previous publication by the Gujarat Government is not necessary in the case of the Rules made by the Gujarat Government. In this case, the previous publication was made by the Bombay Government. That Act of the Bombay Government does not become an Act of the Gujarat Government by anything in the Bombay Reorganisation Act. The question is whether the previous publication by the Bombay Government would be an Act of the Gujarat Government under the law and in particular under Bombay Re-organisation Act. 1960'

The learned Judge has then considered clause (d) of section 2 of the Bombay Reorganisation Act which defines the term 'law', and section 88 of the Bombay Reorganisation Act. With due deference, while considering the question of construction of section 24 of the Act read with section 89 of the Bombay Reorganisation Act, the consideration of clause (2) of section 2 and section 88 of the said Act does not arise. It is obvious that the Parliament has visualised a situation where the Government though authorised under section 88 of the said Act, may have either failed to adapt or modify any law in force prior to the appointed day in its application to the new State or may have failed to adequately so provide and it is, therefore, that we find the non obstinate clause in section 89 and the vesting of the power in the law Courts, the tribunals and other authorities which have to enforce such laws, to construe them in the manner indicated in section 89, a power which ordinarily is not available to them, to carry out the object mentioned in the said section. Section 24 of the Act was law in force before the appointed day and the question to be considered is whether construing section 24 read with section 89 of the Reorganisation Act, it can be said that the publication by the Government of Bombay before the appointed day was sufficient compliance with the requirements of section 24. In view of the reasons given by us in construing section 24 read with section 89 o the Bombay reorganisation Act. We are unable to agree with the decision of Raju J.

(22) That takes us to the consideration of the last submission on behalf of the applicant. We invited Mr. Adhvaryu. The learned Advocate for the opponent to point out to us any provision of law which requires the Government to state in the notification relating to amendment in rules that the amendments have been made in constitution with the Central Committee. Mr. Adhvaryu was not able to show any such provision. We are unable to find any such provision in the Prevention of Food Adulteration Act. The only requirement under section 24 is that the rules hall be made after consultation with the Committee. It may be that if the amendment constitutes any substantial change in the original rules, such amendments can be made after consultation with the Committee. But section 24 does not also require that a statement shall be made to that effect in the publication of such amended rules, Failure therefore to make such a statement in the publication can certainly not invalidate either the amended rules or the original rules. The reasoning of the learned Magistrate appears to indicate that in his view because of the failure of the Government to make such a statement, all the rules become invalid. It was argued on behalf of the applicant that even if law did provide for such a requirement of a statement in the publication, it would only affect the amendment and not all the rules as they stood before the amendment and the rules as they stood before the amendment would be in force. He further pointed out to us that Rules 4 and 5 were not amended and what we are concerned with in this case are rules 4 and 5 which provide for the obtaining of the licence. There is force in this submission but we do not propose to discuss this latter submission of the learned Advocate on behalf of the applicant because we do not find it necessary to enter into such a discussion, and we should not be taken to have decided the point. But apart from it, the fact remains that there is no provision of law which requires the State Government to publish a statement that the amendment was being made after consultation with the Committee and therefore the learned Magistrate was in error in coming to the conclusion that because of want of such a declaration the rules become invalid It is true that the requirement of law being that the rules are to be made after consultation with the Committee, if it is challenged that no such consultation has been made, it would be open to the Government to establish such a fact. We are however not concerned with that aspect Suffice it to say that want of publication of the nature referred to by the learned Magistrate does not invalidate the rules.

(23) In the result, we find that the Gujarat Prevention of Food Adulteration Rules, 1961 are validly made and the Order of discharge passed by the learned Judge on the basis that the said rules were not validly made, is erroneous and the said order of discharge is set aside and the learned Magistrate shall proceed further with the case according to law.

(24) Petition allowed.


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