Case ID: 3056

Judgment:
iminal Appeal No. 93 of 1971. L. M. Singhvi	 P. N. Tewari	 O. C. Mathur	 J. B. Dadacharji and Ravinder Narain	 for the appellant. Niren De	 Attorney General for India	 Jagadish Swarup	 Solicitor General of India	 R. N. Sachthey and R. L. Mehta	 for respondents Nos. 1 & 2. Advocate General for the State of Jammu and Kashmir and R. N. Sachthey	 for respondent No. 3. The Judgment of the Court was delivered by Sikri	 C.J. This appeal	 by special leave	 is directed 	against the judgment of the Jammu & Kashmir High Court holding that the 	 (25 of 1946) was validly extended to the State of Jammu and Kashmir by the Jammu and Kashmir (Extension of Laws) Act	 1956 'here in after referred to as the Extension Act. The High Court decided this question on a reference made by the Special Magistrate	 under section 432 of the Code of Criminal Procedure	 before whom the challan had been filed under the Ranbir Penal Code on November 29	 1967. The only question involved in this appeal before us is as to the validity of the aforesaid extension. In order to appreciate the contentions of the learned counsel in this respect	 it is necessary to give an account of the constitutional provisions applicable to the State of Jammu and Kashmir. On January 26	 1950 the Constitution of India came into force. In exercise of the powers conferred by cl.(1) of article 370 of the Constitution of India	 the President	 in consultation with the Government of the State of Jammu & Kashmir	 made the Constitution (Application to Jammu and Kashmir) Order	 1950. This order was superseded by another order in 1954. By that order	 	one of the entries on which Parliament could make laws was entry 413 80 of List I of the Seventh Schedule of the Constitution. This entry reads as follows : "Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State	 but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas out side the State. " By the Extension Act	 which received the assent of the President on September 25	 1956	 the 	 was extended to the State of Jammu and Kashmir in the following manner. Section 1(2) of the Extension Act provided that "it shall come into force on such date as the Central Government may	 by notification in the Official Gazette	 appoint. " Section 2 provided as follows : "(1) The Acts and Ordinance mentioned in the Schedule and all rules	 orders and regulations made thereunder are hereby extended to and shall be in force in	 the State of Jammu and Kashmir. (2) With effect from the commencement of this Act	 the Acts and Ordinance mentioned in the Schedule shall be amended as specified therein. " The Schedule which contained the Delhi Special Police Esta blishment Act	 1946	 amended it by omitting the words "except the State of Jammu and Kashmir" from section 1. A notification was issued appointing November 1	 1956	 as the date for the coming into force of the Extension Act in the State of Jammu and Kashmir. The effect of the notification and Sec. 2 mentioned above was that the 	 came into force in the State of Jammu and Kashmir from November 1	 1956. The Constitution (Seventh Amendment) Act	 1956 also came into force on November 1	 1956. The State of Delhi	 which was a part 'C ' State immediately before the Seventh Amendment became a Union Territory. A new article	 article 372A	 was also inserted in the Constitution enabling the President to adapt laws in force immediately before the commencement of the Constitution (Seventh Amendment) Act	 1956. This article has no application to the State of Jammu and Kashmir and	 therefore	 any adaptations made by the President 414 in exercise of the powers under article 372A can have no application to the State of Jammu and Kashmir. In view of these constitutional changes	 it is contended on behalf of the appellant	 that under entry 80 Parliament could only extend the powers and jurisdiction of members of the Police Force belonging to any State	 and as Delhi became a Union Territory and ceased to be a State on November 1	 1956	 Parliament had no jurisdiction to extend the to the State of Jammu and Kashmir. It seems to us that the impugned Act was validly extended and our reasons for coming to this conclusion are as follows. When the Extension Act was passed	 Parliament had the competence to extend the impugned Act to the State of Jammu and Kashmir because the Delhi Special Police Establishment was a police force belonging to a Part 'C ' State. The contention of the learned counsel that because Parliament could not extend the powers and jurisdiction of members of the Delhi Special Police Force after November 1	 1956	 assuming it to be correct	 does not invalidate the powers exercised earlier. When the Extension Act was passed there is no doubt that the Parliament had the power. The fact that the Parliament ceased to have power	 as from Nov ember 1	 1956	 does not make any difference. ' This Court had occasion to deal with a similar question in State of Assam vs Ka Brhyien Kurkalang.(1) In that case	 para 19(b) of Schedule 6	 Constitution of India	 authorized the Governor to make regulations for the peace and good government of a district. This power was vested in the Governor tin the setting up of a District Council for an autonomous district. It was contended that because a District Council had been set up	 the Governor could not exercise the power under the Regulation and apply laws. The High Court had accepted the contention but this Court reversed the judgment of the High Court	 and after referring to J. K. Gas Plant Manufacturing Co. Ltd. vs King Emperor; (2) Ram Kirpal vs State of Bihar;(3) and Cajee vs U. Jormanik Siem	(4) held that although the power of the Governor to legislate ended when the District Council was constituted	 the power conferred under the regulation on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the regulation remained on the statute book. The same principle applies here. The Central Government could validly issue a notification under sub section (2) of Sec. 1 appointing the date from which the Act would come into force	 and as soon as this notification was made	 by virtue of section 2	 the (1) (2) (3) ; (4) ; 415 impugned Act came into force in the State. The Constitution (Seventh Amendment) Act did not destroy the efficacy of sub section (2) of section 1. The learned counsel contended that this principle conflicts with the general principle that executive power corresponds to legislative power and it could not have been intended that the extended law should operate when there was no corresponding legislative power. In this connection he referred to article 73. The general principle is subject to exceptions. Article 73 itself opens with the words "subject to the provisions of this Constitution. " This is one of the exceptions envisaged by the Constitution. Other such exceptions are in article 277 and article 372. Although legislative power may not exist to legislate on the subject of existing laws executive power would be exercised under the laws saved by article 277 and article 372. No authority has been cited in support of the contention that executive power to execute a valid law ceases to exist if power to make that law has been transferred to another authority or ceases to exist. It was next contended that the impugned Act was repugnant to and inconsistent with the Jammu and Kashmir Code of Criminal Procedure and Jammu and Kashmir Police Act	 which were already in existence before the Delhi Special Police Act	 1946 came into force. But in so far as the impugned legislation is a law with respect to entry 80	 even if there is repugnancy it must override any laws repugnant thereto in Jammu and. Kashmir. article 246	 as applicable to Jammu and Kashmir	 reads thus "246(1) Notwithstanding anything in clause (2)	 Parliament has the exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List"); (2) Parliament	 and	 subject to clause (1)	 the Legislative of any State also	 have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List") When the impugned Act was extended Parliament had no power to make laws with respect to any items in the Concurrent List	 but the impugned law is fully covered by entry 80 and there is no need to rely on the Concurrent list. Therefore	 article 254 can have no application to the present case. It was also contended that the impugned Act could not have been: validly extended by a notification dated October 10	 1956	 416 issued under the Extension Act which itself came into force only from November 1	 1956. There is nothing in sub s.(2) of section 1 which makes it obligatory that the notification should issue simultaneously with the date of the coming into force of the Act. On the contrary	 notification must ordinarily issue earlier than the date of the coming into force of the law. It seems to us clear that the notification could have been issued any time after the President had given his assent	 and as soon as the notification was issued section 2 came into effect and all the Acts and Ordinance mentioned in the Schedule	 stood automatically extended and came into force. The learned counsel did not press the point regarding article 14 of the Constitution. In the result the appeal fails and is dismissed. V.P.S. Appeal dismissed.

Summary:
By the Constitution (Application to Jammu & Kashmir) Order	 1954	 one of the entries on which Parliament could make laws was Entry 80 of List I of the Seventh Schedule	 dealing With 'Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State '. The 	 (Extension Act) received the President 's assent on September 25	 1956. Section 1(2) provides that it shall come into force on such date as the Central Government may	 by notification 'in the Official Gazette appoint. By a notification dated October 10	 1956	 November 1	 1956 was appointed as the date for the coming into force of the Extension Act in the State of Jammu and Kashmir. The effect of the notification and section 2 of the Act was that the 	 (the impugned Act) which was one of the Acts mentioned in the Schedule to the Extension Act	 came into force in the State from November 1	 1956. On the same day the Constitution (Seventh Amendment) Act	 1956	 came into force and Delhi ceased to be a part C State and became Union Territory. On the question whether the impugned Act was not validly extended to the State of Jammu and Kashmir	 because	 Delhi ceased to be a Part C State on November 1	 1956	 HELD : (1) When the Extension Act was passed	 Parliament had the competence to extend the impugned Art to the State of Jammu and Kashmir	 because	 the Delhi Special Police establishment was a police force belonging to a Part C State. Assuming Parliament ceased to have the power as from November 1	 1956	 the Central Government could validly issue the notification under section 1(2) appointing the date from which the Extension Act would come into force	 and as soon as this was done	 by virtue of section 2	 the impugned Act came into force in the State. [414 B E] State of Assam vs Brhvian Kurkalang	 A.I.R. 1972 S.C. 223	 followed. (2) The general principle that the executive power corresponds to the legislative power	 in article 73	 of the Constitution is subject to exceptions. The executive power to execute a valid law does not crease if power to make that law has ceased to exist. [415 B D] (3) In so far as the impugned legislation is a law with respect to Entry 80	 even if there was repugnancy it must override any laws repugnant thereto in Jammu and Kashmir. [415 D E] 412 (4) There is nothing in section 1(2) of the Extension Act which makes it obligatory that the notification should issue simultaneously with the 	date of the coming into force of the Act. On the contrary	 the notification must ordinarily issue earlier than the date of the coming into force of the law. The notification could have been issued any time after the President had given his assent to the Act	 and as soon as the notification was issued	 section 2 came into effect and all the Acts and Ordinances mentioned in the Schedule stood automatically extended and came into force in the State [416 A C]