Appeal No 92 of 1954
Appeal from the judgment and order dated January 28 1953 of the  Calcutta High Court in Award Case No 105 of 1952
M C Setalvad Attorney General for India B Sen P D Himatsinghka and B P Maheshwari for the appellant
N C Chatterjee M 0
Poddar and Ganpat Rai for the respondent
January 20
The Judgment of the Court was delivered by DAS C J
This is an appeal filed upon a certificate of fitness granted by the High Court of Calcutta impugning the judgment pronounced by the said High Court on January 23 1953 declaring null and void an award No 209 of 1952 made by the Bengal Chamber of Commerce in case No 855 of 1951 whereby they ordered the respondent company to pay to the appellant company a sum of Rs 195000 besides interest and costs
The facts giving rise to the present appeal are simple and may briefly be summarised as follows On April 6 1951 the appellant company entered into a contract with the respondent company for the supply of 5000 maunds of Nikhli andor Ashuganj Jute on certain prices according to quality  shipment during July andor August 1951 guaranteed 
That contract which was entered into by bought and sold notes exchanged between the parties through brokers con tained a very wide arbitration clause
When shipping documents were presented to the respondent company by the bankers of the appellant company they were not honoured on the plea that the same were not in order and the respondent company failed to take delivery of the goods
The last date on which the 81 documents were so presented was September 17 1951
On September 26 1951 the appellant company through their solicitors wrote to the respondent company intimating that they had exercised their option of cancelling the contract and demanding the payment of the sum of Rs 195000 as damages on the basis of the difference between the contract price and the market price of the goods as on September 17 1951
The respondent company having by their letter dated October 25 1951 denied their liability to pay any amount the appellant company on November 2 1951 referred the dispute to the arbitration of the Bengal Chamber of Commerce in terms of the arbitration clause contained in that contract
The respondent company submitted to the jurisdiction of the Tribunal of arbitration by appearing and adducing evidence before it
On February 29 1952 the arbitrators made their award by which they allowed the claim of the appellant company in full with interest and costs
The award having been filed in the Calcutta High Court on April 23 1952 the respondent company on June 91952 filed an application in that Court praying inter alia that the award be declared null and void and be set aside
The main ground urged in that application was that the award was a nullity in that the contract containing the arbitration clause was void under the provisions of the Raw Jute Central Jute Board and Miscellaneous Provisions Act 1951 W Ben
VI of 1951 which was then in force
In order to appreciate the points raised before the High Court and before us it is necessary at this stage to refer to some of the statutory provisions bearing on the question
To regulate the prices of jute and to empower the Government to fix its maximum prices the West Bengal Legislature passed an Act called the West Bengal Jute Control of Prices Act 1950 W Ben
VI of 1950 which came into force on March 151950
On December 141950 the Government of West Bengal promulgated an Ordinance called the Raw Jute Central Jute Board and Miscellaneous Provisions 82 Ordinance 1950 XVII of 1950 for the better regulation of the jute trade
The preamble to that Ordinance recited that as the owners of jute mills were not being able to secure adequate supplies of jute on the maximum prices fixed under the West Bengal Jute Control of Prices Act 1950 it had become expedient to set up a Central Jute Board in West Bengal for ensuring an equitable supply of raw jute to the owners of the jute mills
That Ordinance consisted of only 15 sections
Section4 of that Ordinance provided for the constitution of the Central Jute Board
Section 5 was expressed in the following terms   5
1 No person shall sell or agree to sell raw jute to the owner of a jute mill and no owner of a jute mill shall buy or agree to buy raw jute save and except in pursuance of a contract for the sale or the supply of raw jute entered into in the manner provided in section 6
2 Any contract entered into for the sale or the supply of raw jute with the owner of a jute mill save and except in the manner provided in section 6 shall be void and of no effect
3 Any person contravening the provisions of sub section If shall be guilty of an offence under this Ordinance and shall be punishable with imprisonment which may extend to six months or with fine or with both
 Section 6 laid down the manner in which all contracts for the sale or supply of raw jute with the owners of jute mills were to be entered into
Section 7 ran as follows  7
1 No person shall deliver or cause to be delivered to the owner of a jute mill and no owner of a jute mill shall accept or cause to be accepted any raw jute save and except in pursuance of a contract for the sale or the supply of raw jute entered into in the manner provided in section 6
2 Any person contravening the provisions of sub section If shall be guilty of an offence under this Ordinance and shall be punishable with imprisonment which may extend to six months or with fine or with both
83 3 The provisions of section 5 section 6 and this section shall have effect on and from the appointed day
 The expression  appointed day  occurring in section 7 3 quoted above was thus defined in section 2 1 of that Ordinance   2 1 I appointed day  means the date specified by the State Government by notification in the Official Gazette as the appointed day for the purpose of this Ordinance  By a notification dated December 29 1950 published in an extraordinary issue of the Calcutta Gazette of the same date December 30 1950 was specified as  the appointed day for the purposes of sections 5 6 and 7 of the said Ordinance
 The said Ordinance was subsequently replaced by an Act called the Raw Jute Central Jute Board and Miscellaneous Provisions Act W Ben
Act VI of 1951 hereinafter referred to as  the Act  which came into force on March 21 1951
The first fifteen sections of the Act were almost verbatim reproductions of the fifteen sections of the Ordinance and only one new section was added as the sixteenth section reading as follows  16
The Central Jute Board constituted any rule made any notification or licence issued any direction given any contract entered into any minimum price fixed anything done or any action whatsoever taken under the Raw Jute Central Jute Board and Miscellaneous Provisions Ordinance 1950 shall on the said Ordinance ceasing to operate be deemed to have been constituted made issued given entered into fixed done or taken under this Act as if this Act had commenced on the 14th day of December 1950
 The Act was in force at all times material to these proceedings though the same was subsequently repealed on August 5 1952
It may be mentioned here that both when the Ordinance was in force and after the Act had come into operation the Central Jute Board issued a series of circulars by which it authorised the owners of jute mills to purchase raw jute up to the extent of quotas 84 respectively allotted to them through  normal trade channels  subject to their furnishing particulars of the contracts and of deliveries under them to the Board
The contract in question was entered into through  normal trade channels  and not in the manner specified in the said Act or the rules framed thereunder
Indeed it is conceded that no application had been made by the appellant company to the Board under section 61 of the Act that the Board did not under section 62 of the Act select any jute mills as buyers of these goods that the respondent company had not signified in writing to the Board its intention to buy the raw jute in question that the Board did not specify a date within which the contract was to be entered into and that finally the delivery period fixed in the contract was in contravention of the provisions of the Act and the rules and therefore the contract was void under section 52 of the Act if sections 5 6 and 7 were in force at the date of the contract
The respondent company s aforesaid application for setting aside the award having come on for hearing the learned Single Judge sitting on the Original Side reported the matter under r 2 of ch
V of the Original Side Rules to the Chief Justice for forming a larger Bench for hearing of the said application
A Special Bench was accordingly constituted by the Chief Justice and the application came up for hearing before that Bench
Three points were urged before the High Court namely 1 that the Act was ultra vires the Bengal Legislature 2 that even if the Act were intra vires sections 5 6 and 7 of the Act were never brought into force and 3 that there was a subsequent independent agreement to refer the disputes to the arbitration of the Bengal Chamber of Commerce
The High Court negatived all the contentions raised by the appellant company and by its judgment dated January 23 1953 allowed the application and declared the award to be null and void but directed the parties to bear their own costs
This appeal as already stated has been filed against the judgment of the High Court upon a certificate of fitness granted by the High Court
85 The learned Attorney General appearing in support of this appeal has urged before us only the second point urged before the High Court namely that even if the Act were intra vires sections 5 6 and 7 had never been brought into force and therefore the contract in question containing the arbitration clause was valid and consequently the award was binding and enforceable
He does not dispute that by virtue of section 16 of the Act the notification issued on December 19 1950 under section 21 of the Ordinance has to be deemed to have been issued under the Act but he contends that even so the notification dated December 29 1950 cannot be read as having brought sections 5 6 and 7 of the Act into force for it in terms specified December 30 1950 as the appointed day  for the purposes of sections 5 6 and 7 of the Ordinance 
He urges that this Court has to take the notification made under the Ordinance as it finds it and then under section 16 of the Act to deem it to have been made under the Act
According to him the fiction created by section 16 ends as soon as the notification is deemed to have been made under the Act and goes no further
He concludes on the authority of the decisions in Hamilton and Co vs Mackie and Sons 1 and T W Thomas  Co Limited vs Portsea Steamship Company Limited 2 that on a plain reading of it the notification when it is deemed to have been made under the Act makes no sense for it does not purport to bring any of the sections of the Act into force but expressly brings sections 5 6 and 7 of the Ordinance into force
He submits that it is not for the court to alter the terms of the notification so as to make it possible to read it as a notification made under the Act
We are unable to accept this line of argument
The decisions relied on by the learned Attorney General can have no application to the pre sent case
In those cases there was no statutory provision for deeming the provision of the charter party referring all disputes under the charter party to arbitration as an integral part of the provisions of the bill of lading and therefore the only thing to be done in those cases was to lift bodily the relevant provision 1 2 86 of the charter party and to insert it in and to read it as a part of the bill of lading
It was held that so read it became insensible for an arbitration clause referring all disputes arising out of the charter party was wholly out of place and meaningless as a term of the bill of lading
A cursory perusal of section 16 will however show that there are two fictions created by that section One is that the Act shall be deemed to have commenced on December 14 1950 and the other is that the notification issued under the Ordinance shall be deemed to have been issued under the Act
If the Act fictionally commenced on December 14 1950 then the Ordinance would have to be treated as not promulgated at all for the two could not have coexisted and when the Act provided that the notification which for identification is described as having been issued under the Ordinance should be deemed to have been made under the Act then unless we read the word  Ordinance  7 as  Act  we do not give full effect to the twin fictions created by the Act
In other words the creation of the statutory fictions compels us to adopt the principle of mutatis mutandis and to substitute the word  Act  for the word  Ordinance  used in the notification so as to give full effect to the fictions created by the statute
We see no reason in support of the contentions of the Attorney General that the fiction raised by section 16 stops short at mere issuing of the notification
The ambit of the fiction appears to us to cover not only the issuance of the notification but to extend to our reading it as having been one issued under the Act
We cannot read it as having been issued under the Act unless we read the word  Ordinance  used in the notification as  Act 
No other point has been urged before us and for reasons stated above this appeal must be dismissed
In view of the circumstances referred to in the judgment of the High Court and appearing in the record we make no order for costs of this appeal
Appeal dismissed


Summary:
Under Hindu law though an illegitimate son of a Sudra cannot enforce partition during his father s lifetime he can enforce partition after his father s death if the father was separate from his collaterals and has left separate property and legitimate sons