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PETITIONER:

THE STATE OF BOMBAY

Vs.

RESPONDENT:

PANDURANG VINAYAK CHAPHALKAR AND OTHERS.

DATE OF JUDGMENT:

13/03/1953

BENCH:

MAHAJAN, MEHR CHAND

BENCH:

MAHAJAN, MEHR CHAND

BHAGWATI, NATWARLAL H.

CITATION:

1953 AIR 244 1954 SCR 773

CITATOR INFO :

R 1965 SC1818 (28)

RF 1971 SC1474 (11)

R 1984 SC 790 (16)

RF 1986 SC 137 (57)

ACT:

Bombay Building (Control on Erection) Act, 1948, s. 15-Bom-

bay General Clauses Act, 1904, s. 25-Repeal of Ordinance

and reenactment as Act-Notifications issued under Ordinance

whether continue in force-Construction of Act-Statutory

fictions.

HEADNOTE:

The Bombay Building (Control on Erection) Ordinance of

1948 applied to certain areas mentioned in the Schedule to

the Ordinance, and in exercise of the powers vested in it by

the Ordinance the Government extended its provisions to

certain other areas including Ratnagiri in respect of

buildings intended to be used for cinemas and other places

of entertainment, by a notification of the 15th January,.

1948. This Ordinance was repealed by the Bombay Building

(Control on Erection) Act of 1948 the provisions of which

were similar to those of the earlier Ordinance. Section

15(1) of the Act repealed that Ordinance and declared that "

the provisions of ss. 7 and 25, Bombay General Clauses Act,

1904, shall apply to the repeal as if that Ordinance were an

enactment."

Held, reversing the judgment of the Bombay High Court, that

on a true construction of s. 15(1) of the above said Act and

s. 25 of the Bombay General Clauses Act, 1904, the

notification issued on the 15th January, 1948, under the

Ordinance continued in force under the Act of 1948 and that

by it the provisions of the Act stood extended to other

areas in the State including Ratnagiri to the extent

indicated in the notification.

Ex parte Walton: In re Levy (17 Ch. D. 746) and East End

Dwelling Co. Ltd. v. Finsbury Borough Council ([1952] A.C.

109) referred to.

JUDGMENT:

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 62 of

1951.

Appeal by special leave granted by the Supreme Court of

India on the 14th May, 1951, from the Judgment and Order

dated the 9th August, 1950, of the High Court of Judicature

at Bombay (Bavdekar and Vyas JJ.) in Criminal Appeal No. 319

of 1950 arising out of the Judgment and Order dated the 6th

January, 1950, of the Court of the Sub-Divisional Magistrate

F.C., Ratnagiri City, in Criminal Case No. 77 of 1949.

774

M. C. Setalvad, Attorney-General for India (G. N.

Joshi and P. A. Mehta, with him) for the appellant.

K. B. Chaudhury for the respondent.

1953. March 13. The Judgment of the Court was delivered by

MAHAJAN J.-The respondents were charged with having

committed an offence punishable under section 9(2) read with

section 4 of the Bombay Building (Control on Erection) Act,

1948, for commencing the work of erection of a cinema

theatre without obtaining the necessary permission from the

controller of buildings, Bombay. The sub-divisional

magistrate, Ratnagiri, held that the Act not having been

validly extended to Ratnagiri, no permission of the

controller of buildings was necessary for the construction.

He accordingly acquitted them. On appeal by the State

Government, the order of acquittal was maintained by the

High Court. This appeal is before us by special leave from

the concurrent orders of acquittal.

Special leave was granted on the Attorney-General for

India undertaking on behalf of the State Government of

Bombay that whatever the decision of the court might be, no

proceedings will be taken against the respondents in respect

of the subject-matter under appeal. At the hearing of the

appeal it was made plain by the learned Attorney-General

that no adverse consequences will flow to the respondents or

to their building being completed, by the acquittal order

being pronounced as bad, and that the State Government will

not in any way interfere with the respondents when they take

steps to complete the building, the construction of which

was commenced without the permission of the controller. The

State Government merely wants to have the question of law

decided as a test case because the decision of the High

Court, if left unchallenged, would have far-reaching

effects.The facts giving rise to the prosecution of the

respondents, shortly stated, are these: There was in force

in the State of Bombay an Ordinance, Bombay

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Building (Control on Erection) Ordinance, 1948. It was

applicable to certain areas specified in the schedule. The

district of Ratnagiri was not one of the areas therein

specified. Sub-section (4) of section (1) of the Ordinance

empowered the provincial government by notification in the

official gazette to extend to any other area specified in

such notification its provisions. It further empowered the

provincial government to direct that it shall apply only in

respect of buildings intended to be used for such purpose as

may be specified in the notification. On 15th January.

1948, the Government of Bombay issued the following

notification:-

" In exercise of the powers conferred by sub-section (4) of

section 1 of the Bombay Building (Control on Erection)

Ordinance, 1948 (Ordinance No. I of 1948), the Government of

Bombay is pleased to direct that the said ordinance shall

also extend to all areas in the province of Bombay other

than the areas specified in the schedule to the said Act and

that it shall apply to said areas only in respect of

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buildings intended to be used for the purpose of cinemas,

theatres and other places of amusement or entertainment."

The consequence of this notification was that in the

district of Ratnagiri no cinema building could be commenced

without the permission of the controller after that date.

Ordinance I of 1948 was repealed by Act XXXI of 1948,

The Bombay Building (Control on Erection)' Act, 1948". It

was made applicable to areas specified in the schedule.

Sub-section (3) of section I authorized the provincial

government by notification in the official gazette to direct

that it shall also extend to any other. areas specified

therein. It further authorized the provincial government to

direct that it shall apply only in respect of buildings

intended to be used for such purposes as may be specified in

the notification. By section 15(1) of the Act it was pro-

vided that-

`` The Bombay Building (Control on Erection) Ordinance,

1948, is hereby repealed and it is hereby

776

declared that the provisions of sections 7 and 25 of the

Bombay General Clauses Act, 1904, shall apply to the repeal

as if that Ordinance were an enactment."

The respondents started constructing a cinema at Ratnagiri

on 15th August, 1948, after the commencement of Act XXXI of

1948 without obtaining the permission of the controller of

buildings as required by the Act under the impression that

the Act had application only to areas specified in the

schedule and the district of Ratnagiri not having been

specified in the schedule, the provisions of the Act had no

application to that area. As above stated, they were

prosecuted for committing an offence under section 9(2) read

with section 4 with the results above mentioned.

The order of acquittal was based on the ground that

although the notification extended the scope of the

ordinance to area, other than those which were mentioned

specifically in the schedule thereto, it did not extend to

those areas the provision, of the Act in spite of the

application of the provisions of section 25 of the Bombay

General Clauses Act. In Judgment, the construction placed

by the High Court on the language of section 15 is erroneous

and full effect has not been given to its provisions or to

the provisions of section 25 of the Bombay General Clauses

Act. We think on a true construction of section 15 of the

Act and section 25 of the Bombay General Clauses Act, the

notification issued on 15th January, 1948, under the

ordinance continued in force under Act XXXI of 1948 and that

by it the provisions of the Act stood extended to other

areas in the State to the extent indicated in the

notification. Section 25 of the Bombay General Clauses Act,

1904, provides-

`` Where any enactment is, after the commencement of this

Act, repealed and re-enacted by a Bombay Act, with or

without modification, then, unless it is otherwise expressly

provided, any appointment, notification, order, scheme,

rule, bye-law or form made or issued under the repealed

enactment shall, so far as it is not inconsistent with the

provisions re-enacted,

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continue in force and be deemed to have been made or issued

under the provisions so re-enacted unless and until it is

superseded by any appointment, notification, order, scheme,

rule, bye-law or form made or issued under the provisions so

re-enacted."

It cannot be contended that the notification was

inconsistent with the provisions of Act XXXI of 1948. It is

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clearly in accordance with its scheme and purpose. The High

Court did not combat the proposition that in view of the

provisions of section 25 of the Bombay General Clauses Act

the notification continued in force after the coming into

force of the Act. It, however, held that even if the

notification was taken as having been issued under Act XXXI

of 1948, the notification merely extended the ordinance to

these areas and not the Act. In the opinion of the High

Court, the word "Act " instead of " Ordinance " could not be

read in the words of the notification by the force of

section 25 of the Bombay General Clauses Act and the

notification literally construed, only extended the

ordinance to those areas. It was considered that if the

intention was to extend the Act to these areas, such an

intention could only be carried out by enacting in Act XXXI

of 1948 a proviso like the one enacted in the Cotton Cloth

and Yarn (Control) Order, 1945, or by use of language

similar to the one used in section 9 of the Bombay General

Clauses Act, 1904. The proviso in the Cotton Cloth and Yarn

(Control) Order is in these terms:" Provided further any

reference in any order issued under the Defence of India

Rules or in any notification issued thereunder to any

provision of the Cotton Cloth and Yarn (Control) Order,

1943, shall, unless a different intention appears, be

construed as reference to the corresponding provision of

this Order."

We do not find it possible to support this line of

reasoning. It appears to us that the attention of the

learned Judges was not pointedly drawn to the concluding

words of section 15 (1) of the Act. It is specifically

provided therein that the provisions of

778

sections 7 and 25 of the Bombay General Clauses Act shall

apply to the repeal as if the ordinance were an enactment.

The ordinance by use of those words was given the status of

an enactment and therefore the word "ordinance" occurring in

the notification has to be read accordingly and as extending

the Act to those areas, and unless that is done, full effect

cannot be given to the 'Concluding words used in section

15(1) of the Act. The concluding words of section 15(1) of

the Act achieve the purpose that was achieved in the Cotton

Cloth and Yarn (Control) Order by the "proviso." By reason

of the deeming provisions of section 15, the language used

in the notification extending the ordinance to those areas

as a necessary consequence has the effect of extending the

operation of the Act to those areas. When a statute enacts

that something shall be deemed to have been done, which in

fact and truth was not done, the court is entitled and bound

to ascertain for what purposes and between what persons the

statutory fiction is to be resorted to and full effect must

be given to the statutory fiction and it should be carried

to its logical conclusion. [Vide Lord Justice James in Ex

parte Walton : In re Levy(1)]. If the purpose of the

statutory fiction mentioned in section 15 is kept in view,

then it follows ,that the purpose of that fiction would be

completely defeated if the notification was construed in the

literal manner in which it has been construed by the High

Court. In East End Dwellings Co. Ltd. v. Finsbury Borough

Council(2), Lord Asquith while dealing with the provisions

of the Town and County Planning Act, 1947, made reference to

the same principle and observed as follows:-

" If you are bidden to treat an imaginary state of affairs

as real, you must surely, unless prohibited from doing so,

also imagine as real the consequences and incidents which,

if the putative state of affairs had in fact existed, must

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inevitably have flowed from or accompanied it........ The

statute says that you must imagine a certain state of

affairs; it does not

(1) 17 Ch. D.746, at P. 756, (2) [1952] A.C. 109.

779

say that having done so, you must cause or permit your

imagination to boggle when it comes to the inevitable

corollaries of that state of affairs."

The corollary thus of declaring the provisions of section

25 of the Bombay General Clauses Act applicable to the

repeal of the ordinance and of deeming that ordinance an

enactment is that wherever the word "ordinance" occurs in

the notification, that word has to be read as an enactment.

For the reasons given above we are satisfied that the High

Court was in error in holding that the notification only

extended the provisions of the ordinance to Ratnagiri

district and not the provisions of Act XXXI of 1948 to that

area. It may, however, be observed that the manner adopted

by the legislature in keeping alive the notifications issued

under the ordinance by use of somewhat involved language in

matters where the rights of the citizens regarding the

construction of buildings were being affected was not very

happy. It has certainly led three judges to think that the

intention of the legislature was not brought out by the

language. People who are not lawyers may well be misled

into thinking that the notification issued under the

ordinance has terminated with its repeal and not having been

re-issued under the Act, the provisions of which again in

clear language provide that it only extends to areas

specified in the schedule and which gives power to extend

it, that those areas are excluded from the scope of the Act.

It would have been much simpler if the legislature made its

intention clear by use of simple and unambiguous language.

Because of the undertaking given by the learned Attorney-

General not to proceed any further in this matter, it is not

necessary to set aside the acquittal order of the

respondents, which will remain as it stands.

A appeal allowed.

Acquittal not set aside.

Agent for the appellant: G. H.Rajadhyaksha.

Agent for the respondents: Ganpat Rai.

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