iminal Appeal No 36 of 1958
Appeal by special leave from the judgment and order dated May 9 1957 of the Patna High Court in Criminal Reference No 51 of 1957 and Criminal Revision No 323 of 1957 arising out of the judgment and order dated March 20 1957 of the First Additional Sessions Judge Patna in Criminal Revision No 14 of 1957
K P Varma and R C Prasad for the appellant
H J Umrigar and B P Maheshwari for the respondents
728 1959
September 14
The Judgment of the Court was delivered by SUBBA RAO J
This is an appeal by special leave by the State of Bihar against the judgment of the High Court of Judicature at Patna quashing the criminal proceedings launched against the respondents in the Court of Munsif Magistrate Patna
The two respondents were the proprietors of a firm called Ms Patna Textiles doing business in cotton at Patna
On August 30 1955 they despatched two bales of saries to Ms Hiralal Basudev Prasad cloth merchants of Balia from Patna Ghat without obtaining a permit from the Textile Controller Bihar
They were prosecuted under section 7 of the X of 1955 hereinafter called the Act read with section 3 of the Cotton Textiles Control of Movement Order 1948 hereinafter called the Order in the Court of the Munsif Magistrate Patna
The respondents filed a petition before the said Munsif Magistrate praying for their discharge on the ground that the Essential Supplies Temporary Powers Act 1946 XXIV of 1946 hereinafter called the 1946 Act whereunder the said Order was made had been repealed and therefore the Order ceased to have any legal force thereafter and consequently they could not be prosecuted under the expired Order
The Munsif Magistrate rejected that petition
The Additional Sessions Judge Patna after perusing the records transmitted the same to the High Court under section 438 of the Code of Criminal Procedure with his opinion that the order of the Munsif Magistrate was wrong and therefore it might be set aside with the direction to the Munsif Magistrate to discharge the accused
The respondents also filed a revision to the High Court against the order of the Munsif Magistrate
The reference as well as the revision were heard together by Imam J of the High Court at Patna and the learned Judge accepting the reference and the revision set aside the order of the Munsif Magistrate and directed the accused to be discharged
Hence the appeal
729 The learned Counsel appearing for the state contended that the Order made under the 1946 Act was saved under section 16 of the Essential Commodities Ordinance of 1955 hereinafter called the Ordinance and section 16 2 of the Act and therefore the accused were validly prosecuted under the provisions of the Order
The learned Counsel for the respondents argued that the order was not saved under either of the said two sections
To appreciate the contention of the parties it is necessary to notice the relevant provisions of the 1946 Act the Order the Ordinance and the Act
Essential Supplies Temporary Powers Act 1946
section 1 3  It shall cease to have effect on the twenty sixth day of January 1955 except as respects things done or omitted to be done before that date and section 6 of the X of 1897 shall apply upon the expiry of this Act as if it had then been repealed by a Central Act
section 3 1 The Central Government so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein
Cotton Textiles Control of Movement Order 1948
section 3 No person shall transport or cause to be transported by rail road air sea or inland navigation any cloth yarn or apparel except under and in accordance with i a general permit notified in the Gazette of India by the Textile Commissioner or ii a special transport permit issued by the Textile Commissioner
The Essential Commodities Ordinance 1955
Preamble  Whereas the Essential Supplies Temporary Powers Act 1946 XXIV of 1946 which confers powers to control the production 730 supply and distribution of and trade and commerce in certain commodities expires on the 26th day of January 1955        the President in pleased to promulgate the following Ordinance section 16 Any order made or deemed to be made under the Essential Supplies Temporary Powers Act 1946 XXIV of 1946 and in force immediately before the commencement of this Ordinance shall in so far as such order may be made under this Ordinance be deemed to be made under this Ordinance and continue in force and accordingly any appointment made licence or permit granted or direction issued under any such order and in force immediately before such commencement shall continue in force unless and until it is superseded by any appointment made licence or permit granted or direction issued under this Ordinance
This Ordinance was published in the Gazette of India on January 21 1955 and came into force on January 26 1955
The  section 3 1 If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices it may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein
section 7 1 If any person contravenes any order made under section 3 a he shall be punishable i in the case of an order made with reference to clause h or clause i of sub section 2 of that section with imprisonment for a term which may extend to one year and shall also be liable to fine and ii in the case of any other order with imprisonment for a term which may extend to three years and shall also be liable to fine 731 Provided that if the Court is of opinion that a sentence of fine only will meet the ends of justice it may for reasons to be recorded refrain from imposing a sentence of imprisonment section 16 1 The following laws are hereby repealed  a the Essential Commodities Ordinance 1955 b any other law in force in any State immediately before the commencement of this Act in so far as such law controls or authorizes the control of the production supply and distribution of and trade and commerce in any essential commodity
2 Notwithstanding such repeal any order made or deemed to be made by any authority whatsoever under any law repealed hereby and in force immediately before the commencement of this Act shall in so far as such order may be made under this Act be deemed to be made under this Act and continue in force and accordingly any appointment made licence or permit granted or direction issued under any such order and in force immediately before such commencement shall continue in force until and unless it is superseded by any appointment made licence or permit granted or direction issued under this Act
3 The provisions of sub section 2 shall be without prejudice to the provisions contained in section 6 of the X of 1897 which shall also apply to the repeal of the Ordinance or other law referred to in sub section 1 as if such Ordinance or other law had been an enactment
The said provisions may be briefly summarized thus Under the Act of 1946 the Central Government had the power to make an order for regulating or prohibiting the production supply and distribution of essential commodities
That Act itself provided that it would cease to have effect on January 26 1955
In exercise of the powers conferred under section 3 of the said Act the Central Government made the Cotton Textile Control of Movement Order 1948 prohibiting any person 732 from transporting cloth among others without the permit of the Textile Commissioner
Before the Act ceased to have effect ie on January 26 1955 the Ordinance was promulgated on January 21 1955 conferring on the Central Government a power similar to that conferred upon it under section 3 of the 1946 Act
The said Ordinance also provided for saving clauses in respect of certain things done under the 1946 Act
On April 1 1955 the Act was passed practically reenacting the same provisions of the Ordinance and thereunder the same power exercised by the Central Government under section 3 of the 1946 Act and section 3 of the Ordinance was preserved
The Act also provided for repeals and savings
The question therefore is whether on the date of commission of the offence the Order whereunder the prosecution was launched was subsisting or whether it ceased to exist
It is common case that an Order made under an Act ceases to have any legal force after the expiry of the term for which the Act is made
But it is contended that the Order survived the expiry of the 1946 Act by reason of the saving clauses provided by the Ordinance and the Act
Ordinarily the Order should have expired on January 26 1955
Unless it was saved by section 16 of the Ordinance the saving clause of the Act could not operate on it
We shall therefore consider the question from two aspects i whether section 16 of the Ordinance saved the operation of the Order and ii if it saved it whether section 162 of the Act gave it a further lease of life
Section 16 of the Ordinance is in two parts
Under the first part any order made or deemed to be made under the Essential Supplies Temporary Powers Act 1946 and in force immediately before the commencement of this Ordinance shall in so far as such order may be made under this Ordinance be deemed to be made under this Ordinance and continue in force
 The necessary condition for the operation of this part of section 16 is admittedly complied with
The Order made under section 3 of the 1946 Act can be made under section 3 of the Ordinance and if so by reason of the express words of the section the Order must be deemed to be made under the Ordinance and continue to be in force 733 after its promulgation
But it is said that the second part of the section cuts down the wide amplitude of the phraseology used in the first part
After stating that the said Order shall continue to be in force the second part proceeds to state  and accordingly any appointment made licence or permit granted or direction issued under any such order and in force immediately before such commencement shall continue in force unless and until it is superseded by any appointment made licence or permit granted or direction issued under this Ordinance 
If the Order continues in force the argument proceeds the second part of the section becomes otiose for the appointment made licence or permit granted or direction issued under the Order automatically continues in force and therefore there is no necessity for enacting the second part of section 16
The anomaly occurs even if the argument be accepted for in that event the first part becomes unnecessary The same result can be achieved by enacting only the second part of section 16 and omitting the first part altogether
To ascertain the meaning of a section it is not permissible to omit any part of it the whole section should be read together and an attempt should be made to reconcile both the parts
There is no ambiguity in the provisions of the first part of the section
In clear and unambiguous terms it posits the continuation in force of the Order notwithstanding the repeal of the Act  thereafter it proceeds to enumerate certain past acts done under the Order and in force immediately before the commencement of the Ordinance and says that they will continue in force in consequence of the continuance of the Order
The word  accordingly  which means consequently indicates that the enumerated acts will not continue in force but for the continuance of the Order itself they depend upon the continuation of the Order
It is said that this interpretation imputes tautology to the legislature and therefore should not be accepted
A scrutiny of the section shows that the second part is not really redundant as at the first blush it appears to be
Under section 16 of the Ordinance the Order made under the Act of 1946 continues to be 93 734 in force till another Order is made under the Ordinance
It covers two periods i the period up to the date of the commencement of the Ordinance and ii the period thereafter
The first part gives life to that Order and therefore the acts authorised under that Order can be done subsequent to the coming into force of the Ordinance
But a question may be raised whether the past acts done under that Order are saved by the continuance of the Order or whether the acts already done are covered by the words that the Order shall continue in force 
The second part appears to have been enacted for the purpose of avoiding this difficulty or at any rate to dispel the ambiguity
Under the section both the Order and the acts previously done under the Order are saved
If so it follows that the Order was saved and the prosecution authorized by the Order could legitimately be launched after the Ordinance came into force
Even so it is contended that the Order saved by section 16 of the Ordinance fell with the repeal of that Ordinance and was not continued under the Act
This argument is based upon the provisions of section 161 and 2 of the Act
Section 16 has three sub sections
For the present argument we are concerned only with sub sections 1 and 2 of section 16
Sub section 2 is a repetition of section 16 of the Ordinance
But it is said that section 161b of the Act indicates that the Order was not saved under that section
Under section 161a the Essential Commodities Ordinance 1955 is repealed and under section 161b any other law in force in any State immediately before the commencement of this Act in so far as such law controls or authorizes the control of the production supply and distribution of and trade and commerce in any essential commodity  is also repealed
The argument is that the Order is comprehended by the words  any other law  in cl
b of section 161 and therefore when that Order is repealed under cl
b of section 161 it is unreasonable to hold that it is restored under sub section
2 of section 16
To put it in other words an intention cannot be imputed to the legislature to repeal an order under one sub section and restore it by another sub section
If we may say 735 so there is a fallacy underlying this argument
The words  any other law  in section 161b can only mean any law other than the Essential Commodities Ordinance 1955 mentioned in section 161a
It is admitted that there are laws other than the said Ordinance in force in many States controlling the production supply and distribution of essential commodities
An order made or deemed to be made under the Commodities Ordinance 1955 cannot be described as a law other than Essential Commodities Ordinance whereunder it is made
Such an order is comprehended by cl
a of section 161 itself and therefore cl
b thereof has no application to it
In this view an interpretation different from that we have put on the provisions of section 16 of the Ordinance cannot be given to sub section
2 of section 16 of the Act
For the reasons we have given in interpreting the provisions of section 16 of the Ordinance we hold that under section 162 both the order and the acts enumerated in the second part of it survived the expiry of the Ordinance and continued in force under the Act
For the above reasons we hold that the prosecution was validly launched against the accused under section 3 of the Order
Even so the learned Counsel for the respondents contends that it is not a fit case for this Court to interfere under article 136 of the Constitution
The offence was alleged to have been committed on August 30 1955 ie more than four years ago
The varying views expressed by the Courts indicate that there was a plausible justification for reasonable belief on the part of the accused that the Order did not survive the expiry of the life of the 1946 Act
The order of the High Court dismissing the application for leave to appeal to the Supreme Court shows that it was filed in contravention of the provisions of r 28 of the Patna High Court Rules
Under the said Rules the application should have been filed immediately after the judgment was delivered
In the affidavit filed in support of that application the only reason given for not doing so was that the appellant did not give the necessary instructions
The learned Judge of the High Court rightly did not accept that reason as a sufficient 736 ground for permitting the application to be filed at a later stage
In the application for special leave filed in this Court though it was stated that the application filed in the High Court for certificate was rejected the reason for the rejection was not disclosed
Further the State presumably filed this appeal to get the legal position clarified
We also believe that public interest does not require that the stale matter should be resuscitated
In the circumstances we would be justified not to exercise our discretionary jurisdiction and we accordingly dismiss the appeal
Appeal dismissed


Summary:
The suit out of which the present appeal arose was one for redemption of some occupancy lands owned and mortgaged by two brothers S and A the Khata of the lands standing in the name of S as the registered occupant under section 74 of the Bombay Land Revenue Code 1879
The mortgage which was a usufructuary one was executed by S and A in 1888 in favour of the predecessors in interest of the appellants
By a Rajinama filed under section 74 of the Code in 1900 S made an unconditional 88 694 surrender of the occupancy
On the same day the mortgagees by a Kabuliyat prayed that the occupancy in the mortgaged property might be granted to them
Both the Rajinama and the Kabuliyat were granted by the Mamlatdar
By the Rajinama S did not however purport to relinquish the occupancy on behalf of A After the death of S A applied to the Mamlatdar for the cancellation of the transfer in favour of the mortgagees and registering the mortgaged property in his name
That application was rejected
The heirs of S claiming also to be the heirs of A brought the suit for redemption
The defence of the appellants was that the plaintiffs were not the heirs of A and that the right of redemption in the entire occupancy had been extinguished by the Rajinama
The administrators of the estate of A were then added as defendants but were later on transposed to the category of co plaintiffs
The courts below found against the appellants
Hence this appeal by special leave
The question for determination was whether the surrender by S amounted to a relinquishment of the entire occupancy including the share of A Held that the Rajinama could in no way affect the right of A to his share in the occupancy and the right of redemption in respect of his share still subsisted
Under section 74 of the Bombay Land Revenue Code 1879 rightly construed the registered occupant had no inherent or independent right in the absence of any authority express or implied which must be clearly pleaded and strictly proved to give a notice of relinquishment so as to affect the interest of other occupants as well
Although the section conferred certain rights and imposed certain obligations on the registered occupant it was not intended to take away the rights of other occupants
Lalchand Sakharam Marwadi vs Khendu Kedu Ugbade 22 Bom
LR 1431 referred to
Held further that even though A s application to get the mortgaged property registered his name had failed there could be no question of adverse possession since the possession of the mortgagees had a lawful origin in the usufructuary mortgage
Nor could a mere assertion of adverse title affect the subsisting equity of redemption or shorten the prescribed period of limitation for the suit
Khiarajmal vs Diam ILR  referred to