Case: The State Of Bombay Vs. Salat Pragji Karamsi

4. Kutch before 1948 was what was called an Indian State.The Maharao of Kutch handed over the governance 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 S.4 of the Extra Provincial Jurisdiction Act (Act XL VII of 1947), an order called the Kutch (Application of Laws) Order, 1945. On August 1, 1949, Kutch became a Chief commissioners Province under the State Merger (Chief Commissioners Provinces) Order, 1949. Clause 2 (1)(c) of this order is as follow:7. On January 1,1950, the Merged States Laws Act (Act LIX of 1949), came into force. By this Act certain Central Acts were extended to the Province of Kutch including General Clauses Act (X of 1897). On Jan. 26, 1950, the Constitution of India came into force and Adaptation of Laws Order, 1950 was promulgated the same day. Clause 4(1) 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) StateProvincial State Provinces (except where it occurs in. any expression mentioned above) State6. "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 Where a corresponding new authority has been constituted by or under the Constitution have effect until duly repealed or amended as if it were a reference to that new authority."8. On November 28, 1950, the Chief Commissioner of Kutch issued the following notification :"In exercise of the powers vested in him under S.1 ofthe Bombay Prevention of Gambling Act, 18879. On a consideration of all the Acts and Orders as well as the above mentioned Adaptation of Laws Order, 1950, the learned Judicial Commissioner 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.

Reasoning: 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.