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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   This Ordinance was repealed by the  Bombay  Building (Control  on Erection) Act of 1948 the provisions  of  which were  similar  to those of the earlier  Ordinance.   Section 15(1) of the Act repealed that Ordinance and declared that " the provisions of ss. 7 and 25, Bombay General Clauses  Act, 1904, shall apply to the repeal as if that Ordinance were an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 775 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, 777 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. 101 780