1953 Supreme(SC) 30

SUPREME COURT OF INDIA
13th March 1953
MAHAJAN AND BHAGWATI JJ.
State of Bombay - Appellant
Versus
Pandurang Vinayak and others-Respondents.
Criminal Appeal No, 42 of l95l.
Advocates appeared
Shri M. C. Setalvad, Attorney-General for India (Shri G. N. Joshi and Shri. P. A. Mehta, Advocates with him) instructed by Shri G. H. Rajadhyaksha, Agent for Appellant ; Shri K. R. Chaudhury, Advocate, instructed by Shri Ganpat Rai, Agent, for Respondents.

Headnote:Bombay Building (Control on Erection) Ordinance (I of 1948)-Notification dated 15-1-48 extending the Ordinance to areas other than in the schedule-Ordinance repealed by Act 31 of 1948-Repealing Section 15( I) of the Act providing application of Ss. 7 and 25 of the Bombay General Clauses Act, 1904, to the repeal as if the Ordinance were an enactment-InterpretationNotification dated 15-1-48 whether in force after the repeal of the Ordinance.

       The Bombay Building (Control on Erection) Ordinance was enacted in 1948. It was applicable to certain areas specified in the schedule, and S. 4(1) of the Ordinance empowered the Provincial Government by notific"tion in the official Cazette to extend to any other areas 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 purposes as may be specified in the notification. On 15-1-48 the Government of Bombay issued a notification extending the Ordinance to all areas in the Province of Bombay other than the areas specified in the schedule to the said Ordinance in respect of buildings intended to be used for the purpose of cinemas, theatres and other places of aluusement or entertainment. The areas to which the Ordinance was thus extended included the district of Ratnagiri also.

       The Ordinance was repealed by the Bombay Building (Control on Erection) Act, 1948 (Act 31 of 1948). It was made applicable to areas specified in the schedule. S.3(1) of the Act authorized the Provincial Government by notification in the official gazette to direct that it shall also extend to any other areas specified therein. By S. 15 (1) of the Act it was provided that:

       The Bombay Building (Control on Erection) Ordinance, 1948, is hereby repealed and it is hereby declared that the provisions of Ss. 7 and 25 of the Bombay General Clauses Act, 1904, shaH apply to the repeal as if that Ordinance were an enactment.

       The respondents started constructing a cinema at Ratnagiri on 15•8-1948 after the commencement of Act 31 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. They were prosecuted for commhting an offence under S. 9 (2) read with S. 4 but were acquitted by the trying Magistrate and the order of acquittal was maintained by the High Court on appeal. There was further appeal to the Su pre me Court.

       Held; (allowing the appeaI2): On a true construction of S. 15 of the Act and S. 25 of the Bombay General Clauses Act, the notification issued on 15-1-1948 under the Ordinance continued in force under Act 31 of 1948 and by it the provisions of the Act stood extended to other areas in the State to the extent indicated in the notification. It is specifically provided in S. 15(1) of the Act that the provisions of Ss. 7 and 25, Bombay General Clauses Act shall apply to the repeal as if the Ordinance were an enactment. The Ordinance by the use of these words was given the status of an enactment and therefore the word "Ordinance" occurring in the notification has to be read accordinglv and as extending the Act to those areas, and unless that is done full effect cannot bc given to the concluding words used in S. 15(1) of the Act. 1. Section 25 of the Bombay General Clauses Act, 1904-, is to the following effect:

       "Where an enactment is, after the commencement of this Act, repealed and reenacted by a Bombay Act, with or without modification, then. unless it is otherwise expressly provided, any appointmen:, 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, continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless and uMil it is superseded by any appointmet, notificBtion order, scheme, rule, bye-law or form made or issued under the provisions so re-enacted."

       2.From State of Bombay v. Pandurang, A.I.R. 1951 Born. 263.