S.C.R.

SUPREME COURT REPORTS 745

possession and that a mandamus will go only on the 19.57 supposition that there is nobody holding the office in Sohan Lal question.

In R. v. Chester Corporation(') it was held ... ._ " . v. if •-J h • • • fl "bl 1 f 1 h h , ne vnwn o ""''o t at It IS an m exi e ru e o aw t at w ere a person - has been de facto elected to a corporate office, and has Imam]. accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information.

A mandamus will not lie unless the election can be shown to be merely colourable. We cannot see why in principle there should be a distinction inade between such a case and the case of a person, who has, apparently, entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom.

In our opinion, the High Court erred in allowing. the application of Jagan Nath filed under Art. 226 of the Constitution and making the order it did. The appeal is accordingly allowed and the order of the High Court is set aside.

In the circumstances of the present case, however, we are of the opinion that each party should bear his own costs in this Court and in the High Court.

Appeal allowed.

THE STATE OF BOMBAY

SALAT PRAGJI KARAMSI

(BHAGWATI, ]AGANNADHADAS, jAFER IMAM, GOVINDA MENON and ]. L. KAPUR JJ.)

Application f Laws-Law of one St11te made applicable t1 another State-When comes into force-Adaptations-Words "shall be construed as"-Meaning ef-Br•mbay Prevention ef Gambling Act (Born. IV of 1887), s. I-Kutch (Application of Laws) Order, 1949

By cl. 3 of the Kutch (Application of Laws) Order, 1949 the Bom?ay Prevention of Gambling Act (Born. IV of 1887) was ade applicable to Kutch.

Clause 4 of the Order provided that the Acts applied to Kutch by the Order "shall be construed" as if

(1) [1855] 25 L.J. Q. B. 6J (Regina v. Chester, Mayor, etc.)

Marth 1.

The State of

B<tmbqy

Sa/at Prag; i

Karam.si

Kaµ, r J.

references therein to the <:l.uthorities and territories \Vere references to the authorities and territories of Kutch as set out in that clause. 'I'he \Vord~ "shall be construed as" mean "shall be read as" and consequently wherever in the Bombay Act the \YOrds

"Provincial Government" or "Govern1nent" are used, they have to be r:':ad as "Chief Con1missioner of f(utch", and :he words "Province or the Presidency of Bombay" <.:.s "Kutch or any part thereof". So understood, S.

I of the Bombay Act :i.s

pplied to J(utch provided that all or any of thC" provisions of thv.t .<\ct n1ay be extended frorn time to time by the Chief Co1nrnissioncr of Kutch by ::in order published in the Official Gazette to any local area in Kutch or any part thereof. 'fhc. contenti11a that the Bombay Act had been validly exrend<:d to and ".<!." in force in the 'vhole of Kutch because of the J(utch (A.pplication of Lavvs) Order, r949, is not sound. The true position is that the whole of the Act in::luding amended s.

I beca1ne applicable to Kutch and, therefcJre, a notirication \Vas nl'.:'ccssary before it could be br0ught into force in any part of l(utch. 1'hc Chief (ornn1is sioner h:sued a notification' on November 28, 1950, brin£; i~1~~ all the provisi::>ns of the Bombay Act into force throughout the \\"h<)le of Kutch \Vi th imn1ediatc effect. The Chief Commissioner of Kutch under s. I of the Bo1nba)r Act, h;, d p0\vers to issue the notifi.:,\- tion making that Act operative in Kutch or in any part of Kuch and those po'"''ers \Vere not affectexl by r\rt. 239 of the Con~titu tion.

The notification \\'as valid and the }\ct came into force in th~ parts of the State to \vhich the notification made it applicable.

CRIMINAL APPELLATE JURISDICTION Appeal No. 33 of 1955.

Criminal

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 R. H. Dhebar, for the appellant.

H. ]. Umrigar, for the respondent.

1957. 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

of the Judicial Commissioner.

The respondent was convicted of an offence under s. r2(a) 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 forfeiture 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 held 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 wa 0 , correct and his acquittal by the learned Judicial Commissioner erroneous.

OnJune 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 Arts. r 32 ( r) and r 34( l) of the Constitution.

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 r,

1948 and thus the whole administration of the State passed ta the Dominion and it became a Centrally administered area. On July 3 l, r 949, the then Central Government issued under s. 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 ·

The State of Bombay v.

Sa/at Pragji Karamsi

Kapur J.

Tiu State of Bombay v.

Salat PraJ!Ji

Karamsi

Kapur].

4. "Except as otherwise specifically provided in the fi; st 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, GQvernor The Chief Commissioner of Kutch. or Chief Controlling Revenue Authority. 2.

Government Th~ Central Government or the Chief Commissioner, as the context may require. 3.

High Court Court of the Judicial Commissioner, Kutch. 4.

Provinces of India, any Province Kutch or any part thereof. of India or any part thereof. 5.

The Province or Presidency of Kutch or any part threof." Bombay or any part thereof.

6. "Any Court may constr•le the provisions of any enactment, rule, regulation, genet a; 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 Commissioner's Provinces) Order, 1949.

Clause 2(1)(c) 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-194 7 Indian States which were to comprise the Chief Commissioner's Province of Kutch.

Under cl. 4 of this Order all laws which were in force including orders made under s.4 of the Extra Provincial Jurisdiction Act of 194 7, 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

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 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

stnd 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)

Provincial. ... , ............................. ..

Provinces (except where it occurs in

State State

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 m 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

The Stal< of

Bombqy

Sa/at Pragji

Karamsi

Kapur].

Tiu State of

Bombay

Sa/oJ hagji

Earamsi

Kapur].

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 r 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 in to force throughout the whole of Kutch with immediate effect."

On a consideration of all the Acts and Orders as well as the abovementioned Adaptation of Laws Order, of 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 exerciscble 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 : ( l) 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 and thus any contravention of that Act became punishable under the Act, and

(2) That 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 November 28, 1950, and therefore, the respondent was rightly convicted and the conviction was wrongly set

aide by the learned Judicial Commissioner.

1 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

J{_utch (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 'shall be reacl as' ar d if that is how these words are understood then wl1ereveT in the Bombay Act the words 'Provincial Government' arc 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 tl; c difTerent words in the Born bay Act rather than implying substitution of the corresponding words.

In this view of the matter

cl. z(1)(cj 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 els. 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 3-99 SC India/59

The State of Bombay v.

Sa/at Pragji Karamsi

Kapur J.

Th~ Statt of

Bomb0;_y

Sa!at Pragii Karamsi

Kapur J.

Government' by the '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, s. 1 of the Bombay Act would read as follows :-

"This Act mav be cited as the Bombav Prevention of Gambling Act, 1887.

All or any or' 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, vi.::., "It extends to the city of Bombay, to the Island of Salsette, to all Railways and railway Station houses without the said citv and island and to all places not more than three miles distant from any part of such station houses respecti, ely" 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 r_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 Kutci1_.

This argument suffers from the infirmity that in its application to Kutch s. 1 of the Bombav Act would ha\e to be excluded which would be n 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 ]. C. in Agaria Osman A/arakhya v. The Kutch State (') which has been followed in the case now before us, to the extent that it dealt with the necessity of a notification under s. r 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, i.e., the valirlity of the notification issued on No\-cmber 28, r 950.

The learned J uclicial 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 :\ct must be construed with the adaptation that the rule of construction mentioned in the Kutch (Application of Laws) Order, r 9-J.9 is deleted.

Hence, e\Tn if substitution of cxpre, sion as mentioned in para -J. of the :\dapLttion of La\\'s Order, r 950 is not made, the rule of construction mentioned in the

Kutd1 1Application of La\\'s) Order, 19.19 for construing

the expression 'Prmincial Go\"C:-rnmcnt'as the 'Chief Commissioner, Kutch' docs 1'ot sunive."

:\rticlc '239 of the Constitution relate.; to administration of Part C States and prmides:

"Subject to the other prmisions of this Part, a State specified in Part C of the First Schedule shall be ad ministered by the President acting, to such extent as he thinks fit, through a Chief Commissioner or a Licutenant-GO\ernnr 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 -0f the Chief Commissioner gi\en to him under any other Statute or

1-A.. I. R. (1951) Kutch9.

T Ji. State of Bombay v.

Sala! Pragji Karamsi

Kapur J.

The State of Bombay v.

Sa[at Pragji

Karamsi

Kapur J.

March 20

Order. The Chief Commissioner of Kutch under s. 1 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 Art. 239 of the Constitution particularly because of cl. 1 5 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, I 950 was valid and issued under legal authority ; and the Act came into force in the parts to which the notification made it so applicable. \Ve 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.

THE NEWSPAPERS LTD. v.

THE STATE INDUSTRIAL TRIBUNAL, U.P.

(BHAGWATI, B. P. SINHA and J. L. KAPUR ]].)

Industrial DisjJut.:, Mt>aning nf-Dtsp11te betu; een enlpioyer and a ringie ri.; orkn1an--TV!zether induJtrial dzspute-Governnu, nt making referer.ce on the assufn/Jtion that a dispute exsits betiveen the ernployer and hi_1 u1nrk1nen--l11hether r:alidity of the re_(erence can be questioned --U.P. Industrial Di•putes Act,

1947 (U.P.

XXVIII rd" 1947), ss.2, 3-Industrial Disputes Act, 19.J.7 (XIV ef 19~ 7, s. 2 (k).

A dispute bern:een an employer and a single workman dot>s not fall \vithin the definition of "industrial dispute" under the L'.P. Industrial Disputes Act, 1947. But though the applicability of the Act to an individual di;; pute as oppost>d to a dispute involving a groLp of \l\1orkmen is excluded, if the workmen as a body or a considerable section of them make common cause with the individual '\York.man then such a dispute "'ould be an industrial dispute.