Case: The State Of Bombay Vs. Salat Pragji Karamsi

States Merger (Chief Commissioners Provinces) Order, 1949, which provided for the administration of the State of Kutch as if it was a Chief Commissioners 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 occured 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 Presidency of Bombay were to be replaced by the words Kutch or any part thereof and the Provincial Government by the Chief Commissioner of Kutch and the powers which had been given to the different authorities under the different Act 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. 12. So understood, S.1 of the Bombay Act would read as follows : - "This Act may be cited as the Bombay Prevention of Gambling Act, 188 7. 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 of 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. 13. 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 S.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 S.1 as given above, became applicable to Kutch and therefore a notification 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 Aterakhya v. Kutch State, AIR 1951 Kutch 9 (A) which has been followed in the case now before us to the extent that it dealt with the necessity of a notification under S.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. 14. This brings us to the second question i.e. 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 be 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 Provincial Government as the Chief Commissioner, Kutch does not survive." 15. 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..." 16.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 order. The Chief Commissioner of Kutch under S.1 of the Bombay Act, had the power to issue notifications making that Act operative is Kutch or any part of Kutch and those powers were not affected by Art. 239 of the Constitution particularly because of Cl. 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 she 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. 1

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The fallacy in the learned Judicial Commissioners 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 Commissioners 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 occured 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 Presidency of Bombay were to be replaced by the words Kutch or any part thereof and the Provincial Government by the Chief Commissioner of Kutch and the powers which had been given to the different authorities under the different Act 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 KutchThe 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 purposeThis argument suffers from the infirmity that in its application to Kutch S.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 S.1 as given above, became applicable to Kutch and therefore a notification 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 Aterakhya v. Kutch State, AIR 1951 Kutch 9 (A) which has been followed in the case now before us to the extent that it dealt with the necessity of a notification under S.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 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 order. The Chief Commissioner of Kutch under S.1 of the Bombay Act, had the power to issue notifications making that Act operative is Kutch or any part of Kutch and those powers were not affected by Art. 239 of the Constitution particularly because of Cl. 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.