Report No. 60
12.30. A Supreme Court case.-
The difficulty is illustrated by a judgment of the Supreme Court.1 The facts in that case were these. In exercise of a statutory power, Government took over the management of an undertaking, and vested its control in X. One of the conditions for the exercise of the power was that the management was not previously being carried out properly. This condition was present when the original order was passed. Subsequently, it was decided to transfer the management from X to Y, and an amending order was issued accordingly. The question arose whether, at the time of the amending order, the condition that the management was not previously being conducted properly should have been complied with.
The Supreme Court upheld the legality of the order; but the reasons given revealed a conflicting interpretation of the section. S.K. Das J. adhered to the strictly literal construction of the words subject to the like conditions," and maintained that these words applied in all situations and had been complied with in the case before the court. Sarkar J. put a limited construction upon them, and observed that these words meant that after the amending order is issued, all the provisions which would have governed the original order would govern the amending order also; for example, provisions limiting the duration of the original order.
Such difficulties will be avoided if the section is made subject to a different intention. The application of the whole section may be excluded by a context. For example, where a municipal corporation is superseded for a particular period, the supersession cannot be extended, because the enactment concerned does not contemplate an amendment in such a case.2
It is also desirable to substitute the expression statutory instrument in this section.3
1. K.P. Khaitan v. Union of India, AIR 1957 SC 676 (685): 1957 SCR 1052 (1073).
2. Gopal Jaya Ram v. State of Madhya Pradesh, AIR 1951 Nag 181 (183), para. 6.
3. Cf. para. 12.2, supra.