http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: ISHWAR DAS MALHOTRA

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT08/02/1972

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) GROVER, A.N. RAY, A.N. PALEKAR, D.G. BEG, M. HAMEEDULLAH

CITATION:  1972 AIR 1193            1972 SCR  (3) 411  1972 SCC  (1) 646

ACT: Jammu and Kashmir (Extension of Laws) Act, 1956, Ss.  1 & 2- --Notification by Central Government appointing November  1, 1956, as date of coming into force of Extension Act to Jammu and Kashmir--Extension of Delhi Special Police Establishment Act  1946  in  the Schedule of Extension Act  to  Jammu  and Kashmir--Constitution (Seventh Amendment) Act,  1956--Effect of.

HEADNOTE: By the Constitution (Application to Jammu & Kashmir)  Order, 1954, one of the entries on which Parliament could make laws was Entry 80 of List I of the Seventh Schedule, dealing With ’Extension  of the powers and jurisdiction of members  of  a police force belonging to any State to any area outside that State’.   The  Jammu and Kashmir (Extension  of  Laws)  Act, 1956,  (Extension  Act) received the President’s  assent  on September  25,  1956.  Section 1(2) provides that  it  shall come into force on such date as the Central Government  may, by  notification  ’in the Official Gazette  appoint.   By  a notification  dated October 10, 1956, November 1,  1956  was appointed  as  the  date for the coming into  force  of  the Extension Act in the State of Jammu and Kashmir.  The effect of  the notification and s. 2 of the Act was that the  Delhi Special  Police Establishment Act, 1946, (the impugned  Act) which  was one of the Acts mentioned in the Schedule to  the Extension Act, came into force in the State from November 1, 1956.  On the same day the Constitution (Seventh  Amendment) Act,  1956, came into force and Delhi ceased to be a part  C State and became Union Territory. On  the  question whether the impugned Act was  not  validly extended  to the State of Jammu and Kashmir, because,  Delhi ceased to be a Part C State on November 1, 1956, HELD : (1) When the Extension Act was passed, Parliament had the  competence to extend the impugned Art to the  State  of Jammu  and  Kashmir,  because,  the  Delhi  Special   Police establishment  was  a  police force belonging to  a  Part  C State.  Assuming Parliament ceased to have the power as from November 1, 1956, the Central Government could validly issue

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

the  notification  under s. 1(2) appointing  the  date  from which  the Extension Act would come into force, and as  soon as  this was done, by virtue of s. 2, the impugned Act  came into force in the State. [414 B-E] State  of Assam v. Brhvian Kurkalang, A.I.R. 1972 S.C.  223, followed. (2)  The   general  principle  that  the   executive   power corresponds  to  the legislative power, in Art. 73,  of  the Constitution is subject to exceptions.  The executive  power to execute a valid law does not crease if power to make that law has ceased to exist. [415 B-D] (3)  In  so  far as the impugned legislation is a  law  with respect  to Entry 80, even if there was repugnancy  it  must override  any laws repugnant thereto in Jammu  and  Kashmir. [415 D-E] 412 (4)  There is nothing in s. 1(2) of the Extension Act  which makes it  obligatory that the  notification  should  issue simultaneously  with the ,date of the coming into  force  of the Act.  On the contrary, the notification must  ordinarily issue earlier than the date of the coming into force of  the law.  The notification could have been issued any time after the  President had given his assent to the Act, and as  soon as  the notification was issued, s. 2 came into  effect  and all the Acts and Ordinances mentioned in the Schedule  stood automatically extended and came into force in the State [416 A-C]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 93  of 1971. L.   M.  Singhvi,  P.  N.  Tewari,  O.  C.  Mathur,  J.   B. Dadacharji and Ravinder Narain, for the appellant. Niren  De,  Attorney-General  for  India,  Jagadish  Swarup, Solicitor-General of India, R. N. Sachthey and R. L.  Mehta, for respondents Nos. 1 & 2. Advocate-General for the State of Jammu and Kashmir and R. N. Sachthey, for respondent No. 3. The Judgment of the Court was delivered by- Sikri,  C.J.  This  appeal, by special  leave,  is  directed ,against  the  judgment of the Jammu &  Kashmir  High  Court holding  that  the Delhi Special Police  Establishment  Act, 1946,  (25  of 1946) was validly extended to  the  State  of Jammu  and  Kashmir by the Jammu and Kashmir  (Extension  of Laws)  Act, 1956’here in after referred to as the  Extension Act.   The High Court decided this question on  a  reference made by the Special Magistrate, under S. 432 of the Code  of Criminal  Procedure, before whom the challan had been  filed under the Ranbir Penal Code on November 29, 1967.  The  only question  involved  in this appeal before us is  as  to  the validity of the aforesaid extension. In  order  to  appreciate the  contentions  of  the  learned counsel in this respect, it is necessary to give an  account of the constitutional provisions applicable to the State  of Jammu and Kashmir.  On January 26, 1950 the Constitution  of India came into force.  In exercise of the powers  conferred by  cl.(1)  of art. 370 of the Constitution  of  India,  the President, in consultation with the Government of the  State of  Jammu & Kashmir, made the Constitution  (Application  to Jammu  and Kashmir) Order, 1950.  This order was  superseded by  another  order  in 1954.  By that  order,  ,one  of  the entries on which Parliament could make laws was entry 413

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

80  of List I of the Seventh Schedule of  the  Constitution. This entry reads as follows :               "Extension  of the powers and jurisdiction  of               members  of  a police force belonging  to  any               State to any area outside that State, but  not               so  as  to enable the police of one  State  to               exercise  powers and jurisdiction in any  area               outside that State without the consent of  the               Government of the State in which such area  is               situated;   extension   of  the   powers   and               jurisdiction  of  members of  a  police  force               belonging  to any State to railway areas  out-               side the State." By  the  Extension  Act, which received the  assent  of  the President  on September 25, 1956, the Delhi  Special  Police Establishment Act, 1946, was extended to the State of  Jammu and  Kashmir in the following manner.  Section 1(2)  of  the Extension  Act  provided that "it shall come into  force  on such date as the Central Government may, by notification  in the  Official  Gazette,  appoint."  Section  2  provided  as follows :               "(1)  The Acts and Ordinance mentioned in  the               Schedule and all rules, orders and regulations               made  thereunder  are hereby extended  to  and               shall  be in force in, the State of Jammu  and               Kashmir.               (2)   With  effect  from the  commencement  of               this Act, the Acts and Ordinance mentioned  in               the  Schedule  shall be amended  as  specified               therein." The Schedule which contained the Delhi Special Police  Esta- blishment  Act,  1946,  amended it  by  omitting  the  words "except the State of Jammu and Kashmir" from section 1. A  notification was issued appointing November 1,  1956,  as the  date for the coming into force of the Extension Act  in the  State  of  Jammu  and  Kashmir.   The  effect  of   the notification  and Sec. 2 mentioned above was that the  Delhi Special  Police Establishment Act, 1946, came into force  in the State of Jammu and Kashmir from November 1, 1956. The  Constitution  (Seventh Amendment) Act, 1956  also  came into  force on November 1, 1956.  The State of Delhi,  which was  a  part  ’C’  State  immediately  before  the   Seventh Amendment  became  a Union Territory.  A new  article,  art. 372A,  was  also inserted in the Constitution  enabling  the President  to  adapt laws in force  immediately  before  the commencement  of the Constitution (Seventh  Amendment)  Act, 1956. This  article has no application to the State of  Jammu  and Kashmir   and,  therefore,  any  adaptations  made  by   the President 414 in  exercise  of  the powers under art.  372A  can  have  no application to the State of Jammu and Kashmir. In view of these constitutional changes, it is contended  on behalf  of  the appellant, that under  entry  80  Parliament could only extend the powers and jurisdiction of members  of the Police Force belonging to any State, and as Delhi became a  Union Territory and ceased to be a State on  November  1, 1956,  Parliament  had no jurisdiction to extend  the  Delhi Special Police Establishment Act, 1946 to the State of Jammu and Kashmir. It  seems to us that the impugned Act was  validly  extended and  our  reasons  for  coming to  this  conclusion  are  as follows.  When the Extension Act was passed, Parliament  had the  competence to extend the impugned Act to the  State  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

Jammu   and  Kashmir  because  the  Delhi   Special   Police Establishment  was  a police force belonging to a  Part  ’C’ State.   The contention of the learned counsel that  because Parliament  could not extend the powers and jurisdiction  of members of the Delhi Special Police Force after November  1, 1956,  assuming  it to be correct, does not  invalidate  the powers exercised earlier.  When the Extension Act was passed there  is no doubt that the Parliament had the  power.   The fact that the Parliament ceased to have power, as from  Nov- ember 1, 1956, does not make any difference.’ This  Court had occasion to deal with a similar question  in State  of  Assam v. Ka Brhyien Kurkalang.(1) In  that  case, para 19(b) of Schedule 6, Constitution of India,  authorized the  Governor  to make regulations for the  peace  and  good government  of  a district.  This power was  vested  in  the Governor  tin  the setting up of a District Council  for  an autonomous  district.   It  was  contended  that  because  a District  Council  had been set up, the Governor  could  not exercise the power under the Regulation and apply laws.  The High  Court  had  accepted the  contention  but  this  Court reversed the judgment of the High Court, and after referring to J. K.  Gas Plant Manufacturing Co. Ltd. v. King  Emperor; (2)  Ram  Kirpal  v.  State of Bihar;(3)  and  Cajee  v.  U. Jormanik  Siem,(4)  held  that although  the  power  of  the Governor  to legislate ended when the District  Council  was constituted, the power conferred under the regulation on the Governor  to  bring  into  force the laws  set  out  in  the Schedule  continued  and  would  continue  so  long  as  the regulation remained on the statute book.  The same principle applies here.  The Central Government could validly issue  a notification under sub-s. (2) of Sec. 1 appointing the  date from  which  the Act would come into force, and as  soon  as this notification was made, by virtue of s. 2, the (1) [1972] S.C.R. 223.     (2) [1947] F.C.R. 141. (3) [1970] 3 S.C.R. 233.   (4) [1961] 1 S.C.R. 750. 415 impugned Act came into force in the State.  The Constitution (Seventh Amendment) Act did not destroy the efficacy of sub- s. (2) of s. 1. The learned counsel contended that this principle  conflicts with the general principle that executive power  corresponds to  legislative  power and it could not have  been  intended that  the  extended  law should operate when  there  was  no corresponding  legislative  power.  In  this  connection  he referred  to art. 73.  The general principle is  subject  to exceptions.  Article 73 itself opens with the words "subject to the provisions of this Constitution." This is one of  the exceptions  envisaged  by  the  Constitution.   Other   such exceptions   are  in  art.  277  and  art.  372.    Although legislative power may not exist to legislate on the  subject of  existing laws executive power would be  exercised  under the  laws saved by art. 277 and art. 372.  No authority  has been cited in support of the contention that executive power to execute a valid law ceases to exist if power to make that law  has been transferred to another authority or ceases  to exist. It was next contended that the impugned Act was repugnant to and inconsistent with the Jammu and Kashmir Code of Criminal Procedure  and  Jammu  and Kashmir Police  Act,  which  were already  in existence before the Delhi Special  Police  Act, 1946  came  into  force.   But in so  far  as  the  impugned legislation is a law with respect to entry 80, even if there is repugnancy it must override any laws repugnant thereto in Jammu  and.  Kashmir.  Art. 246, as applicable to Jammu  and Kashmir, reads thus

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

             "246(1)  Notwithstanding  anything  in  clause               (2),  Parliament  has the exclusive  power  to               make  laws with respect to any of the  matters               enumerated  in List I in the Seventh  Schedule               (in  this  Constitution  referred  to  as  the               "Union List");               (2)   Parliament, and, subject to clause  (1),               the Legislative of any State also, have  power               to  make  laws  with respect  to  any  of  the               matters enumerated in List III in the  Seventh               Schedule (in this Constitution referred to  as               the "Concurrent List") When  the impugned Act was extended Parliament had no  power to  make  laws with respect to any items in  the  Concurrent List, but the impugned law-is fully covered by entry 80  and there is no need to rely on the Concurrent list.  Therefore, art. 254 can have no application to the present case. It  was also contended that the impugned Act could not  have been:     validly  extended by a notification dated  October 10, 1956, 416 issued under the Extension Act which itself came into  force only  from November 1, 1956.  There is nothing in  sub-s.(2) of  S.  1 which makes it obligatory  that  the  notification should issue simultaneously with the date of the coming into force  of  the  Act.  On  the  contrary,  notification  must ordinarily  issue earlier than the date of the  coming  into force   of  the  law.   It  seems  to  us  clear  that   the notification  could  have  been issued any  time  after  the President  had  given  his  assent,  and  as  soon  as   the notification  was issued S. 2 came into effect and  all  the Acts   and  Ordinance  mentioned  in  the  Schedule,   stood automatically extended and came into force. The  learned counsel did not press the point regarding  art. 14 of the Constitution. In  the  result the appeal fails and is  dismissed.   V.P.S. Appeal dismissed. 417