The State of Bombay Vs. Pandurang
Vinayak Chaphalkar & Ors  INSC 20 (13 March 1953)
MAHAJAN, MEHR CHAND BHAGWATI, NATWARLAL H.
CITATION: 1953 AIR 244 1954 SCR 773
CITATOR INFO :
R 1965 SC1818 (28) RF 1971 SC1474 (11) R 1984
SC 790 (16) RF 1986 SC 137 (57)
Bombay Building (Control on Erection) Act, 1948, s. 15-Bom-
bay General Clauses Act, 1904, s. 25-Repeal of Ordinance and reenactment as
Act-Notifications issued under Ordinance whether continue in force-Construction
of Act-Statutory fictions.
The Bombay Building (Control on Erection)
Ordinance of 1948 applied to certain areas mentioned in the Schedule to the
Ordinance, and in exercise of the powers vested in it by the Ordinance the
Government extended its provisions to certain other areas including Ratnagiri
in respect of buildings intended to be used for cinemas and other places of
entertainment, by a notification of the 15th January,.
1948. This Ordinance was repealed by the Bombay Building (Control on Erection) Act of 1948 the provisions of which were similar to
those of the earlier Ordinance. Section 15(1) of the Act repealed that
Ordinance and declared that " the provisions of ss. 7 and 25, Bombay
General Clauses Act, 1904, shall apply to the repeal as if that Ordinance were
an enactment." Held, reversing the judgment of the Bombay High Court, that
on a true construction of s. 15(1) of the above said Act and s. 25 of the
Bombay General Clauses Act, 1904, the notification issued on the 15th January,
1948, under the Ordinance continued in force under the Act of 1948 and that by
it the provisions of the Act stood extended to other areas in the State
including Ratnagiri to the extent indicated in the notification.
Ex parte Walton: In re Levy (17 Ch. D. 746) and East End Dwelling Co. Ltd. v. Finsbury Borough Council ( A.C. 109)
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 62 of 1951.
Appeal by special leave granted by the
Supreme Court of India on the 14th May, 1951, from the Judgment and Order dated
the 9th August, 1950, of the High Court of Judicature at Bombay (Bavdekar and
Vyas JJ.) in Criminal Appeal No. 319 of 1950 arising out of the Judgment and
Order dated the 6th January, 1950, of the Court of the Sub-Divisional Magistrate
F.C., Ratnagiri City, in Criminal Case No. 77 of 1949.
774 M. C. Setalvad, Attorney-General for India (G. N. Joshi and P. A. Mehta, with him) for the appellant.
K. B. Chaudhury for the respondent.
1953. March 13. The Judgment of the Court was
delivered by MAHAJAN J.-The respondents were charged with having committed an
offence punishable under section 9(2) read with section 4 of the Bombay Building (Control on Erection) Act, 1948, for commencing the work of erection of a
cinema theatre without obtaining the necessary permission from the controller
of buildings, Bombay. The sub-divisional magistrate, Ratnagiri, held that the
Act not having been validly extended to Ratnagiri, no permission of the
controller of buildings was necessary for the construction.
He accordingly acquitted them. On appeal by
the State Government, the order of acquittal was maintained by the High Court.
This appeal is before us by special leave from the concurrent orders of
Special leave was granted on the Attorney-General
for India undertaking on behalf of the State Government of Bombay that whatever
the decision of the court might be, no proceedings will be taken against the
respondents in respect of the subject-matter under appeal. At the hearing of
the appeal it was made plain by the learned Attorney-General that no adverse
consequences will flow to the respondents or to their building being completed,
by the acquittal order being pronounced as bad, and that the State Government
will not in any way interfere with the respondents when they take steps to
complete the building, the construction of which was commenced without the
permission of the controller. The State Government merely wants to have the
question of law decided as a test case because the decision of the High Court,
if left unchallenged, would have far-reaching effects. The facts giving rise to
the prosecution of the respondents, shortly stated, are these: There was in
force in the State of Bombay an Ordinance, Bombay 775 Building (Control on
Erection) Ordinance, 1948. It was applicable to certain areas specified in the
schedule. The district of Ratnagiri was not one of the areas therein specified.
Sub-section (4) of section (1) of the Ordinance empowered the provincial
government by notification in the official gazette to extend to any other area
specified in such notification its provisions. It further empowered the
provincial government to direct that it shall apply only in respect of
buildings intended to be used for such purpose as may be specified in the
notification. On 15th January.
1948, the Government of Bombay issued the
following notification:- " In exercise of the powers conferred by
sub-section (4) of section 1 of the Bombay Building (Control on Erection)
Ordinance, 1948 (Ordinance No. I of 1948), the Government of Bombay is pleased
to direct that the said ordinance shall also extend to all areas in the
province of Bombay other than the areas specified in the schedule to the said
Act and that it shall apply to said areas only in respect of buildings intended
to be used for the purpose of cinemas, theatres and other places of amusement
or entertainment." The consequence of this notification was that in the
district of Ratnagiri no cinema building could be commenced without the
permission of the controller after that date.
Ordinance I of 1948 was repealed by Act XXXI
of 1948, The Bombay Building (Control on Erection)' Act, 1948". It was
made applicable to areas specified in the schedule.
Sub-section (3) of section I authorized the
provincial government by notification in the official gazette to direct that it
shall also extend to any other. areas specified therein. It further authorized
the provincial government to direct that it shall apply only in respect of
buildings intended to be used for such purposes as may be specified in the
notification. By section 15(1) of the Act it was pro- vided that- `` The Bombay
Building (Control on Erection) Ordinance, 1948, is hereby repealed and it is
hereby 776 declared that the provisions of sections 7 and 25 of the Bombay
General Clauses Act, 1904, shall apply to the repeal as if that Ordinance were
an enactment." The respondents started constructing a cinema at Ratnagiri
on 15th August, 1948, after the commencement of Act XXXI of 1948 without obtaining
the permission of the controller of buildings as required by the Act under the
impression that the Act had application only to areas specified in the schedule
and the district of Ratnagiri not having been specified in the schedule, the
provisions of the Act had no application to that area. As above stated, they
were prosecuted for committing an offence under section 9(2) read with section
4 with the results above mentioned.
The order of acquittal was based on the
ground that although the notification extended the scope of the ordinance to
area, other than those which were mentioned specifically in the schedule
thereto, it did not extend to those areas the provision, of the Act in spite of
the application of the provisions of section 25 of the Bombay General Clauses
Act. In Judgment, the construction placed by the High Court on the language of
section 15 is erroneous and full effect has not been given to its provisions or
to the provisions of section 25 of the Bombay General Clauses Act. We think on
a true construction of section 15 of the Act and section 25 of the Bombay
General Clauses Act, the notification issued on 15th January, 1948, under the
ordinance continued in force under Act XXXI of 1948 and that by it the
provisions of the Act stood extended to other areas in the State to the extent
indicated in the notification. Section 25 of the Bombay General Clauses Act,
1904, provides- `` Where any enactment is, after the commencement of this Act,
repealed and re-enacted by a Bombay Act, with or without modification, then,
unless it is otherwise expressly provided, any appointment, notification,
order, scheme, rule, bye-law or form made or issued under the repealed
enactment shall, so far as it is not inconsistent with the provisions
re-enacted, 777 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, bye-law or form made or issued
under the provisions so re-enacted." It cannot be contended that the
notification was inconsistent with the provisions of Act XXXI of 1948. It is
clearly in accordance with its scheme and purpose. The High Court did not
combat the proposition that in view of the provisions of section 25 of the
Bombay General Clauses Act the notification continued in force after the coming
into force of the Act. It, however, held that even if the notification was
taken as having been issued under Act XXXI of 1948, the notification merely
extended the ordinance to these areas and not the Act. In the opinion of the
High Court, the word "Act " instead of " Ordinance " could
not be read in the words of the notification by the force of section 25 of the
Bombay General Clauses Act and the notification literally construed, only
extended the ordinance to those areas. It was considered that if the intention
was to extend the Act to these areas, such an intention could only be carried
out by enacting in Act XXXI of 1948 a proviso like the one enacted in the
Cotton Cloth and Yarn (Control) Order, 1945, or by use of language similar to
the one used in section 9 of the Bombay General Clauses Act, 1904. The proviso
in the Cotton Cloth and Yarn (Control) Order is in these terms:" Provided
further any reference in any order issued under the Defence of India Rules or
in any notification issued thereunder to any provision of the Cotton Cloth and
Yarn (Control) Order, 1943, shall, unless a different intention appears, be
construed as reference to the corresponding provision of this Order." We do
not find it possible to support this line of reasoning. It appears to us that
the attention of the learned Judges was not pointedly drawn to the concluding
words of section 15 (1) of the Act. It is specifically provided therein that
the provisions of 778 sections 7 and 25 of the Bombay General Clauses Act shall
apply to the repeal as if the ordinance were an enactment.
The ordinance by use of those words was given
the status of an enactment and therefore the word "ordinance"
occurring in the notification has to be read accordingly and as extending the
Act to those areas, and unless that is done, full effect cannot be given to the
'Concluding words used in section 15(1) of the Act. The concluding words of
section 15(1) of the Act achieve the purpose that was achieved in the Cotton
Cloth and Yarn (Control) Order by the "proviso." By reason of the
deeming provisions of section 15, the language used in the notification
extending the ordinance to those areas as a necessary consequence has the
effect of extending the operation of the Act to those areas. When a statute
enacts that something shall be deemed to have been done, which in fact and
truth was not done, the court is entitled and bound to ascertain for what
purposes and between what persons the statutory fiction is to be resorted to
and full effect must be given to the statutory fiction and it should be carried
to its logical conclusion. [Vide Lord Justice James in Ex parte Walton : In re
Levy(1)]. If the purpose of the statutory fiction mentioned in section 15 is
kept in view, then it follows ,that the purpose of that fiction would be
completely defeated if the notification was construed in the literal manner in
which it has been construed by the High Court. In East End Dwellings Co. Ltd.
v. Finsbury Borough Council(2), Lord Asquith while dealing with the provisions
of the Town and County Planning Act, 1947, made reference to the same principle
and observed as follows:- " If you are bidden to treat an imaginary state
of affairs as real, you must surely, unless prohibited from doing so, also
imagine as real the consequences and incidents which, if the putative state of
affairs had in fact existed, must inevitably have flowed from or accompanied
it........ The statute says that you must imagine a certain state of affairs;
it does not (1) 17 Ch. D.746, at P. 756, (2)  A.C. 109.
779 say that having done so, you must cause
or permit your imagination to boggle when it comes to the inevitable
corollaries of that state of affairs." The corollary thus of declaring the
provisions of section 25 of the Bombay General Clauses Act applicable to the
repeal of the ordinance and of deeming that ordinance an enactment is that
wherever the word "ordinance" occurs in the notification, that word
has to be read as an enactment.
For the reasons given above we are satisfied
that the High Court was in error in holding that the notification only extended
the provisions of the ordinance to Ratnagiri district and not the provisions of
Act XXXI of 1948 to that area. It may, however, be observed that the manner
adopted by the legislature in keeping alive the notifications issued under the
ordinance by use of somewhat involved language in matters where the rights of
the citizens regarding the construction of buildings were being affected was not
very happy. It has certainly led three judges to think that the intention of
the legislature was not brought out by the language. People who are not lawyers
may well be misled into thinking that the notification issued under the
ordinance has terminated with its repeal and not having been re-issued under
the Act, the provisions of which again in clear language provide that it only
extends to areas specified in the schedule and which gives power to extend it,
that those areas are excluded from the scope of the Act.
It would have been much simpler if the
legislature made its intention clear by use of simple and unambiguous language.
Because of the undertaking given by the
learned Attorney- General not to proceed any further in this matter, it is not
necessary to set aside the acquittal order of the respondents, which will
remain as it stands.
A appeal allowed.
Acquittal not set aside.
Agent for the appellant: G. H.Rajadhyaksha.
Agent for the respondents: Ganpat Rai.