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PETITIONER: THE STATE OF BOMBAY

       Vs.

RESPONDENT: SALAT PRAGJI KARAMSI

DATE OF JUDGMENT: 07/03/1957

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. BHAGWATI, NATWARLAL H. JAGANNADHADAS, B. IMAM, SYED JAFFER MENON, P. GOVINDA

CITATION:  1957 AIR  517            1957 SCR  745

ACT: Application of Laws-Law of one State made applicable another State-When  comes  into  force-Adaptations-Words  "shall  be construed as "-Meaning of-Bombay Prevention of Gambling  Act (Bom.  IV of 1887), s. 1-Kutch (Application of Laws) Order, 1949.

HEADNOTE: By cl. 3 of the Kutch (Application of Laws) Order, 1949, the Bombay  Prevention  of Gambling Act (Bom.  IV of  1887)  was made  applicable to Kutch.  Clause 4 of the  Order  provided that  the  Acts  applied to Kutch by the Order  "  shall  be construed " as if (1)  [1855] 25 L.J.Q.B. 6i (Regina v. Chester, Mayor, etc.) 96 746 references  therein to the authorities and territories  were references  to the authorities and territories of  Kutch  as set out in that clause.  The words "shall be construed as  " mean  "shall be read as" and: consequently wherever  in  the Bombay  Act  the  words  "  Provincial  Government  "  or  " Government  "  are  used, they have to be read  as  "  Chief Commissioner  of  Kutch  and  the  words  ,Province  or  the Presidency  of Bombay " as Kutch or any part thereof  ".  So understood,  s.  1  of the Bombay Act as  applied  to  Kutch provided  that all or any of the provisions of that Act  may be  extended from time to time by the Chief Commissioner  of Kutch by an order published in the Official Gazette to  any, local  area  in Kutch or any part thereof.   The  contention that the Bombay Act had been validly extended to and was  in force   in  the  whole  of  Kutch  because  of   the   Kutch (Application  of Laws) Order, 1949, is not sound.  The  true position is that the whole of the Act including amended s. 1 became  applicable to Kutch and, therefore,  a  notification was  necessary before it could be brought into force in  any part of Kutch.  The Chief Commissioner issued a notification on  November  28, 195o, bringing all the provisions  of  the Bombay  Act  into force throughout the whole of  Kutch  with immediate effect.  The Chief Commissioner of Kutch under  s.

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1  of the Bombay Act, had powers to issue  the  notification making  that Act operative in Kutch or in any part of  Kutch and  those  powers  were not affected by  Art.  239  Of  the Constitution.   The notification was valid and the Act  came into  force  in  the  parts  of  the  State  to  which   the notification made it applicable.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 33  of 1955. Appeal  under  Articles  132  (1) and 134  (1)  (c)  of  the Constitution of India from the Judgment and Order dated June 30,  1954, of the Court of Judicial Commissioner,  Kutch  in Criminal Revision Application No. 13 of 1952. Porus A. Mehta and B. H. Dhebar, for the appellant. H. J. Umrigar, for the respondent. 1957.  March 7. The Judgment of the Court was delivered by KAPUR J.-Two important questions arise for decision in  this case  of  a  small magnitude and the State  has  filed  this appeal  not  for the purpose of obtaining a  conviction  but because  of  the  importance of  the  questions  raised  and implications of the judgment 747 of the Judicial Commissioner.  The respondent was  convicted of  an  offence under s. 12(a) of the Bombay  Prevention  of Gambling  Act (Act IV of 1887 hereinafter termed the  Bombay Act) as applied to Kutch and was sentenced to a fine of  Rs. 50  or in default simple imprisonment for 15 days  and  for- feiture of the amounts recovered from the respondent at  the time of the commission of the offence.  He took a’  revision to the Judicial Commissioner of Kutch, who hold that the Act under  which the respondent had been convicted had not  been validly  extended to and was not. in force in the  State  of Kutch.   It  is the correctness of this decision  which  has been canvassed before us. There  was sufficient evidence against the respondent  which was  accepted by the trying magistrate; and if the  Act  was validly  extended  to and was in operation in the  State  of Kutch, his conviction by the learned magistrate was  correct and  his  acquittal  by the  learned  Judicial  Commissioner erroneous. On  June 7, 1951, the respondent, it was  alleged  committed the  offence  he was charged with He was  convicted  by  the magistrate  on  July  26,  1951, and  his  revision  to  the Sessions  Judge was dismissed.  He then took a  revision  to the Judicial Commissioner of Kutch who allowed his  petition on  June.  30, 1954, and granted a certificate  under  Arts. 132(1) and 134(1) of the Constitution. Kutch before 1948 was what was called an Indian State.   The Maharao  of Kutch handed over the gover. nance of the  State to the Dominion of India on June 1, 1948 and thus the  whole administration  of the State passed to the Dominion  and  it became a Centrally administered area.  On July 31, 1949, the then  Central  Government  issued under s. 4  of  the  Extra Provincial  Jurisdiction Act (Act XLVII of 1947),  an  order called  the Kutch (Application of Laws) Order, 1949.   Under cl. 3 of this order certain enactments were applied to Kutch with effect from the date of the commencement of the  order. One of these enactments was the -Bombay Act.  Clauses 4  and 6 of this order are important and may be quoted; 748 4.   "Except as otherwise specifically provided in the first schedule to this order the enactments applied by this  order

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shall   be  construed  as  if  references  therein  to   the authorities and territories mentioned in the first column of the   table  hereunder  printed  were  references   to   the authorities   and   territories,   respectively,   mentioned opposite thereto in the second column of the said table. TABLE. 1.   Provincial Government, Governor The Chief  Commissioner of Kutch. or Chief Controlling Revenue Authority.    2.     Government     The Central Government or the                           Chief Commissioner, as the con-                           text may require.    3.     High Court     Court of the judicial Commissioner,                           Kutch. 4.   Provinces  of  India, any Province Kutch  or  any  part thereof of India or any part thereof.    5.     The  Province or Presidency of Kutch or  any  part thereof.Bombay or any part thereof. 6.   "  Any  Court  may  construe  the  provisions  of   any enactment, rule, regulation, general order or byelaw applied to  Kutch  or  any part thereof by  this  order,  with  such modifications   not  affecting  the  substance  as  may   be necessary or proper in the circumstances." On  August  1,  1949, Kutch became  a  Chief  Commissioner’s province  under  the  States  Merger  (Chief   Commissioners Provinces) Order, 1949.  Clause 2(1)(c) of this order is  as follows: "  As from the appointed day, the parts of States  specified in  the Second Schedule to this order shall be  administered in  all  respects  as if they were  a  Chief  Commissioner’s Province,  and  shall  be  known  as  Chief   Commissioner’s Province of Kutch." The  Second Schedule gives the parts of the pre-1947  Indian States  which  were  to comprise  the  Chief  Commissioner’s Province of Kutch.  Under el. 4 of this Order all laws which were in force including orders made under s. 4 of the  Extra Provincial  Jurisdiction  Act of 1947, were to  continue  in force until replaced. On  January  1, 1950, Merged States’ Laws Act  (Act  LIX  of 1949),  came into force.  By this Act certain  Central  Acts were extended to the province of Kutch 749 including  the  General  Clauses Act (Act X  of  1897).   On January 26, 1950, the Constitution of India came into  force and Adaptation of Laws Order, 1950, was promulgated the same day.  Clause 4(1) of this order provides: "Whenever  an expression mentioned in column 1 of the  table hereunder  printed  occurs  (otherwise than in  a  title  or preamble or in a citation or description of an enactment) in an  (existing  Central or Provincial Laws) whether  an  Act, Ordinance  or Regulation mentioned in the Schedule  to  this Order or not, then, unless that expression is by this  Order expressly  directed to be otherwise adapted or modified,  or to  stand  unmodified,  or to be  omitted,  there  shall  be substituted  therefor the expression set opposite to  it  in column 2 of the said Table, and there shall also be made  in any sentence in which the expression occurs  such consequential  amendments  as  the  rules  of  grammar   may require."      The necessary portions of the table are:      Province (except where it occurs      in any expression mentioned above) State      Provincial.............. State      Provinces (except where it occurs in      any expression mentioned above).   States Clauses  15  and  16 in  (Part  III)-Supplementary,  are  as

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follows:- 15.  "  Save  as is otherwise provided by  this  Order,  all powers  which  under any law in force in India or  any  part thereof  were, immediately before the appointed day,  vested in or exercisable by any person or authority shall  continue to be so vested or exercisable until other provision is made by  some legislature or authority empowered to regulate  the matter in question." 16.  "   Subject  to  the  provisions  of  this  Order   any reference, by whatever form of words in any existing law  to any  authority competent at the date of the passing of  that law  to exercise any powers or authorities, or to  discharge any  functions,  in  any  part  of  India  shall,  where   a corresponding new authority has been constituted by or under the Constitution, have 750 effect  until  duly  repealed or amended as  if  it  were  a reference to that new authority." On November 28, 1950 the Chief Commissioner of Kutch  issued the following notification: In  exercise of the powers vested in him under section I  of the Bombay Prevention of Gambling Act, ’1887 (IV of 1887) as applied  to Kutch by the Kutch (Application of Laws)  Order, 1949  the Chief Commissioner has been pleased to order  that all  the  provisions of the said Act shall come  into  force throughout the whole of Kutch with immediate effect.  " On a consideration of all the Acts and Orders as well as the above  mentioned  Adaptation  of Laws Order,  of  1950,  the learned  Judicial Commisioner was of the opinion that  ,-all such powers vested in or exercisable by any other person  or authority  before  26-1-1950  ceased  to  be  so  vested  or exercisable  by that person or authority ", and,  therefore, only the President, whether exercising the powers himself or through the Chief Commissioner, could exercise the powers of a State Government and the Chief Commissioner himself  could not.  His finding therefore was that the Chief  Commissioner could not issue the above notification of November 28, 1950. In its appeal against the Order of acquittal by the  learned Judicial Commissioner, the State has raised two questions: (1)that the Bombay Act had been validly extended to and  was in  force  in  the  whole of  Kutch  because  of  the  Kutch (Application of Laws) Order, 1949 and thus any contravention of that Act became punishable under the Act, and (2)That  even  if the Bombay Act was not  thus  extended  to Kutch,  the Act became applicable to the State of  Kutch  by the  issuing  of the notification of November28,  1950,  and therefore,  the  respondent was rightly  convicted  and  the conviction  was  wrongly set aside by the  learned  Judicial Commissioner. In:  order  to  decide the first contention we have  to  see what is the effect of the various provisions of the Acts and Orders above -referred to.  In cl. 4 of the 751 Kutch (Application of Laws) Order, 1949, the words; used are shall  be  construed as if reference therein.......  In  our opinion all that these words mean is I shall be read as’ and if  that is how these words are understood then wherever  in the  Bombay Act the words ’Provincial Government’  are  used they have to be read as the Chief Commissioner of Kutch; the word  Government has to be read as the " Chief  Commissioner of Kutch"; and the Province or the " Presidency of Bombay  " as  " Kutch or any part thereof ". If the Bombay Act  is  so read, then at the time when the Constitution came into force the words Provincial Government or Government or Province or Presidency  of  Bombay were no longer in the Act  which  had

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become applicable to the State of Kutch.  On the other hand, the  words there must be taken to be Chief  Commissioner  of Kutch,  and  Kutch or any part thereof,  respectively.   The fallacy in the learned Judicial Commissioner’s judgment lies in  this that due effect was not given to these words  which had  become substituted, but emphasis was laid on the  words ’shall be construed as’ as if these words had been used  for the purposes of interpretation of the different words in the Bombay.   Act  rather  than  implying  substitution  of  the corresponding  words.  In this view of the matter cl. 2  (1) (c)  of the States Merger (Chief  Commissioners’  Provinces) Order,  1949  which provided for the administration  of  the State of Kutch as if it was a Chief Commissioner’s Province, would not affect the position nor would the extension of the General  Clauses  Act  under the Merged  States’  Laws  Act. Clause  4  of  the  Adaptation  of  Laws  Order,  1950  only substituted  in place of the words Province, Provincial  and Provinces the words State or States, wherever they  occurred in  any  existing law, and the effect of cls. 15 and  16  of that  order was the continuance of the powers vested in  the authorities  in whom they had previously been  vested.   The position  which therefore emerges on a combined  reading  of these  various clauses is that in Bombay Act, as applied  to Kutch, the words I Presidency of Bombay’ were to be replaced by  the.  words  ’Kutch  or any  part  thereof’  and  the  I Provincial 752 Government’  by the I Chief Commissioner of Kutch’  and  the powers  which  had been given to the  different  authorities under  the different Acts were to continue to remain in  the person or persons in whom they were already vested.  As  the powers  had been vested in the Chief Commissioner under  the provisions of these various Acts and Orders, they  continued to remain so vested and the General Clauses Act did not have any  operational  effect on these various words  which  were used in the Bombay Act as modified and applied to Kutch. ,SO  understood,  s.  1  of the Bombay  Act  would  read  as follows:- " This Act may be cited as the Bombay Prevention of Gambling Act,  1887.   All or any of its provisions may  be  extended from  time to time by the Chief Commissioner of Kutch by  an order  published  in the " Official Gazette " to  any  local area in Kutch or any part thereof." The  Chief Commissioner of Kutch may, from time to time,  by an  order published as aforesaid, cancel or vary  any  order made by it under this section." The portion of this section, viz.,   "It  extends  to  the city of Bombay,  to  the  Island  of Salsette, to all Railways and railway Station houses without the  said  city and island and to all places not  more  than three  miles  distant from any part of such  station  houses respectively  " would not continue in the Act as applied  to Kutch because these parts are not in the State of " Kutch or any  part thereof " and cl. 6 of the Kutch  (Application  of Laws) Order, 1949 would come into operation for the purpose. It  was then contended that by the mere application  of  the Bombay Act to Kutch it became operative and came into  force in  the  whole  of Kutch.  This argument  suffers  from  the infirmity  that  in  its application to Kutch s.  1  of  the Bombay  Act  would  have to be excluded which  would  be  an incorrect way of looking at the question.  The true position is  that  the whole of the -Act including amended  s.  1  as given  above,  became applicable to Kutch  and  therefore  a

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notification 753 ,was necessary before it could be brought into force in  any part of Kutch.  It was applied to Kutch, but its  provisions were  not in operation before the notification; and  in  our opinion,  the  judgment  of  Baxi  J.  C.  in  Agaria  Osman Alarakhya v. The Kutch State (1) which has been followed  in the case now before us, to the extent that it dealt with the necessity  of a notification under s. 1 of the  Bombay  Act, was  correctly decided; and therefore, the first  contention raised by counsel for the appellant is unsustainable and  we hold that without a notification, the Bombay Act, could  not be held to have been validly applied to the State of Kutch. This brings us to the second question, i.e., the validity of the  notification issued on November 28, 1950.  The  learned Judicial Commissioner held: "  The Chief Commissioner of a Part C State can act to  such extent  as he is authorised by the President to  do.   These being  the  provisions of the Constitution, the  Bombay  Act must  be  construed  with the adaptation that  the  rule  of construction  mentioned in the Kutch (Application  of  Laws) Order,  1949  is deleted.  Hence, even  if  substitution  of expression as mentioned in para 4 of the Adaptation of  Laws Order, 1950 is not made, the rule of construction  mentioned in   the  Kutch  (Application  of  Laws)  Order,  1949   for construing the expression I Provincial Government’ as the  I Chief Commissioner, Kutch’ does not survive.  " Article 239 of the Constitution relates to administration of Part C States and provides: "  Subject  to the other provisions of this  Part,  a  State specified  in  Part  C  of  the  First  Schedule  shall   be administered  by the President acting, to such extent as  he thinks  fit, through a Chief Commissioner or  a  Lieutenant- Governor to be appointed by him........... This Article  has been  relied  upon for urging that in a Part  C  State,  the administration had to be carried on by the President  acting through  a Chief Commissioner.  But this does not take  away the powers of the Chief Commissioner given to him under  any other Statute or (1)  A.I.R. (1951) Kutch 9. 97 754 Order.   The Chief Commissioner of Kutch under s. I  of  the Bombay Act, had the power to issue notifications making that Act operative in Kutch or any part of Kutch and those powers were   not  affected  by  Art.  239  of   the   Constitution particularly  because  of el. 15 of the Adaptation  of  Laws Order,  1950,  which  preserved these powers  of  the  Chief Commissioner.   Therefore,  the notification issued  by  the Chief Commissioner on November 28, 1950 was valid and issued under  legal authority; and the Act came into force  in  the parts  to which the notification made it so applicable.   We have  therefore,  come to the conclusion  that  the  learned Judge was in error in holding that the notification was  not a  valid  one  and in so far as that was the  basis  of  the acquittal of the accused, the judgment under appeal must be set aside. In  the  result  the appeal of the  State  is  allowed,  the judgment of the learned Judicial Commissioner acquitting the respondent  is set aside and that of the learned  Magistrate sentencing  him to a fine of Rs. 50 and sentence in  default and of forfeiture restored. Appeal allowed.

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