iminal 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
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 section 12a 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 articles 1321 and 1341 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 section 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 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
Provincial Government Governor The Chief Commissioner of Kutch
or Chief Controlling Revenue Authority
Government The Central Government or the Chief Commissioner as the con text may require
High Court Court of the judicial Commissioner Kutch
Provinces of India any Province Kutch or any part thereof of India or any part thereof
The Province or Presidency of Kutch or any part thereof
Bombay or any part thereof
 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 21c 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 section 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 41 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 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 1that 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 2That 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 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 section 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 section 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 section 1 as given above became applicable to Kutch and therefore a 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 vs 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 section 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 ie 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 AIR 1951 Kutch 9
97 754 Order
The Chief Commissioner of Kutch under section 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 article 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


Summary:
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 vs 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 section 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 section 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 section 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 article 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