State of Bombay vs Pandurang Vinayak Chaphalkar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 62 of 1951

Decision Date: 13 March 1953

Coram: Mehr Chand Mahajan, Natwarlal H. Bhagwati

The case was titled State of Bombay versus Pandurang Vinayak Chaphalkar and others, and it was decided on 13 March 1953 by the Supreme Court of India. The judgment was authored by Justice Mehr Chand Mahajan, with Justice Natwarlal H. Bhagwati also sitting on the bench. The petitioner was the State of Bombay and the respondents were Pandurang Vinayak Chaphalkar together with other defendants. The formal citation of the decision is 1953 AIR 244 and it also appears in the 1954 Supreme Court Reports at page 773. Subsequent citations include references such as R 1965 SC 1818, RF 1971 SC 1474, R 1984 SC 790, and RF 1986 SC 137. The statutory provisions that formed the core of the dispute were section 15 of the Bombay Building (Control on Erection) Act, 1948, and section 25 of the Bombay General Clauses Act, 1904, which dealt respectively with the repeal of a prior ordinance and the effect of re-enactment as an Act, and raised questions about whether notifications issued under the repealed ordinance would continue to have force after the enactment of the 1948 Act.

The headnote of the judgment explained that the Bombay Building (Control on Erection) Ordinance of 1948 originally applied to certain districts listed in its schedule. By exercising the powers conferred on it, the Government extended the ordinance’s reach by a notification dated 15 January 1948 to cover additional areas, including Ratnagiri, for buildings intended to house cinemas and other entertainment venues. That ordinance was later repealed by the Bombay Building (Control on Erection) Act, 1948, which largely retained the earlier provisions. Section 15(1) of the Act expressly repealed the ordinance but provided that the provisions of sections 7 and 25 of the Bombay General Clauses Act, 1904, would apply to the repeal as if the ordinance were still in force. The Court, overturning the decision of the Bombay High Court, held that a proper construction of section 15(1) together with section 25 of the General Clauses Act meant that the 15 January 1948 notification continued to operate under the 1948 Act, thereby extending the Act’s provisions to other parts of the State, including Ratnagiri, to the extent specified in the notification. The judgment also referred to earlier authorities such as Ex parte Walton, In re Levy (17 Ch. D. 746) and East End Dwelling Co. Ltd. v. Finsbury Borough Council ([1952] A.C. 109).

The matter came before the Supreme Court in Criminal Appeal No. 62 of 1951, a criminal appeal that had been granted special leave on 14 May 1951. The appeal originated from a judgment and order dated 9 August 1950 of the High Court of Judicature at Bombay (judges Bavdekar and Vyas) in Criminal Appeal No. 319 of 1950, which itself arose from a judgment and order dated 6 January 1950 of the Sub-Divisional Magistrate, F.C., Ratnagiri City, in Criminal Case No. 77 of 1949. The Attorney-General for India, Mr M. C. Setalvad, assisted by senior counsel, represented the State of Bombay, while the respondents were represented by counsel Mr K. B. Chaudhury. The judgment was delivered on 13 March 1953 by Justice Mahajan. The Court noted that the respondents had been charged with an offence punishable under section 9(2) read with section 4 of the Bombay Building (Control on Erection) Act, 1948, for commencing the erection of a cinema theatre without obtaining the permission required from the Controller of Buildings, Bombay.

The respondents had been charged with an offence punishable under section 9(2) read with section 4 of the Bombay Building (Control on Erection) Act, 1948 because they began erecting a cinema theatre without securing the required permission from the controller of buildings, Bombay. The Sub-Divisional Magistrate at Ratnagiri held that the Act had not been validly extended to the district of Ratnagiri, and consequently concluded that no permission from the controller was necessary for the construction. On that basis the magistrate acquitted the respondents. The State Government appealed the acquittal, but the High Court of Bombay upheld the lower court’s order of acquittal. The present appeal arose from the concurrent acquittal orders and was heard only because special leave had been granted. Special leave was obtained on the condition that the Attorney-General for India, appearing on behalf of the State Government, undertook that, irrespective of whatever decision the Court might reach, no criminal proceedings would be instituted against the respondents in respect of the matter under appeal. At the hearing, the Attorney-General clarified that the acquittal order being set aside would not cause any adverse effect to the respondents or to the building that had been completed, and that the State Government would not interfere with the respondents’ efforts to finish the construction, even though the building had originally been started without the controller’s permission. The State Government sought only a declaration of the legal point involved, treating the case as a test case because leaving the High Court’s decision unchallenged could have extensive consequences. The factual background of the prosecution can be summarised as follows: At the relevant time, the State of Bombay was governed by the Bombay Building (Control on Erection) Ordinance, 1948, which applied only to the areas listed in its schedule. The district of Ratnagiri was not included in that schedule. Sub-section (4) of section 1 of the Ordinance authorised the provincial government, by issuing a notification in the official gazette, to extend the provisions of the Ordinance to any other area that the government specified. The same sub-section also allowed the government to limit the application of the extension to buildings intended for specific purposes as stated in the notification. On 15 January 1948, the Government of Bombay issued a notification exercising this power, directing that the Ordinance would now extend to every area of the province of Bombay except those already listed in the schedule, and that the extension would apply only to buildings intended to be used as cinemas, theatres, or other places of amusement or entertainment. As a result of that notification, from that date forward a cinema building could not be started in the district of Ratnagiri without obtaining the controller’s permission. Later, the Bombay Building (Control on Erection) Ordinance, 1948, was repealed by the Bombay Building (Control on Erection) Act, 1948 (Act XXXI of 1948).

The provision was made to apply to the areas listed in the schedule. Sub-section (3) of section 1 empowered the provincial government, by way of a notification published in the official gazette, to direct that the ordinance should also extend to any other areas that were specified in that notification. The same sub-section further authorised the provincial government to limit the application of the ordinance to buildings that were intended to be used for purposes that might be specified in the notification. Section 15(1) of the Act then declared that “The Bombay Building (Control on Erection) Ordinance, 1948, is hereby repealed and it is hereby 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.”

After the commencement of Act XXXI of 1948, the respondents began constructing a cinema in the district of Ratnagiri on 15 August 1948. They proceeded without obtaining the permission of the controller of buildings that the Act required, because they were of the impression that the Act applied only to the areas enumerated in the schedule and that Ratnagiri, not being listed, lay outside the Act’s reach. Consequently, the respondents were prosecuted for an offence under section 9(2) read with section 4, and the trial court recorded the result of that prosecution. The respondents obtained an order of acquittal on the basis that, although the earlier notification had extended the scope of the ordinance to areas not specifically mentioned in the schedule, the notification did not extend the provisions of the Act to those areas, even though section 25 of the Bombay General Clauses Act was applicable.

In reviewing the High Court’s construction of section 15, the Court held that the High Court’s interpretation was erroneous because it had not given full effect to the language of section 15 or to the operation of section 25 of the Bombay General Clauses Act. The Court reasoned that, on a proper construction of section 15 together with section 25, the notification dated 15 January 1948, which had been issued under the ordinance, continued to be in force after the enactment of Act XXXI of 1948. By virtue of section 25, that notification caused the provisions of the Act to be extended to other areas of the State to the extent described 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, 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.” The Court further held that it could not be contended that the 15 January notification was inconsistent with the provisions of Act XXXI of 1948.

In the present case the notification was examined in relation to Act XXXI of 1948 and was found to be consistent with the scheme and purpose of that statute. The High Court accepted that, according to section 25 of the Bombay General Clauses Act, the notification continued to operate after the enactment of Act XXXI. Nevertheless, the High Court concluded that even if the notification were treated as issued under Act XXXI, it merely extended the earlier ordinance to the specified areas and did not extend the Act itself. The Court reasoned that the term “Act” could not be substituted for “Ordinance” in the wording of the notification merely by reference to section 25, and that a literal construction of the notification would therefore effect only an extension of the ordinance. The Court further held that, should the intention have been to extend the Act, that intention could have been realised only by inserting a proviso in Act XXXI similar to the one contained in the Cotton Cloth and Yarn (Control) Order, 1945, or by employing language akin to that used in section 9 of the Bombay General Clauses Act, 1904. The proviso in the Cotton Cloth and Yarn (Control) Order reads as follows: “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.” The present Court could not support the High Court’s line of reasoning.

The Court observed that the judges of the High Court had not been directed to consider the concluding words of section 15(1) of Act XXXI. Section 15(1) expressly provides that the provisions of sections 7 and 25 of the Bombay General Clauses Act shall apply to the repeal as if the ordinance were an enactment. By this provision the ordinance was given the status of an enactment; consequently, the term “ordinance” appearing in the notification must be interpreted as effecting an extension of the Act to the concerned areas. Without such an interpretation, the concluding words of section 15(1) could not be given full effect. The Court further noted that the concluding words of section 15(1) achieve the same purpose as the proviso in the Cotton Cloth and Yarn (Control) Order. Because of the deemed-to-be provisions of section 15, the language of the notification, although framed as extending the ordinance, inevitably results in the extension of the operation of the Act to those areas. When a statute declares that something shall be deemed to have been done, although it has not in fact occurred, the Court is bound to determine the purpose of the statutory fiction and the parties between whom it is intended to operate.

In this case, the Court held that the statutory fiction created by section 15 must be given its full effect and must be carried to its logical conclusion. The Court referred to the authority of Lord Justice James in Ex parte Walton : In re Levy(1) to illustrate that when a statute imposes a deemed circumstance, that fiction must be applied consistently. The Court explained that if the purpose of the fiction in section 15 is kept in view, then interpreting the notification literally, as the High Court had done, would completely defeat that purpose. The Court then cited the decision in East End Dwellings Co. Ltd. v. Finsbury Borough Council(2), where Lord Asquith, dealing with the Town and County Planning Act, 1947, observed that when one is required to treat an imagined state of affairs as real, one must also imagine the inevitable consequences that would follow from that imagined state. The Court stressed that the statute does not permit the imagination to stop at the imagined fact but requires the imagination to follow through to the logical corollaries.

The Court applied this principle to the present situation by declaring that the effect of extending section 25 of the Bombay General Clauses Act to the repeal of the ordinance and deeming the ordinance an enactment is that every occurrence of the word “ordinance” in the notification must be read as meaning “enactment.” For this reason, the Court concluded that the High Court was wrong in holding that the notification merely extended the provisions of the ordinance to Ratnagiri district and did not extend the provisions of Act XXXI of 1948 to that area. While acknowledging that the legislature’s method of keeping the notifications alive through complex language—particularly where citizens’ rights concerning building construction were affected—was not satisfactory, the Court noted that such complexity inevitably led three judges to misinterpret the legislature’s intention. The Court observed that laypersons might be misled into believing that a notification issued under the ordinance terminated with its repeal and was not re-issued under the Act, especially because the Act’s clear language limits its application to areas listed in the schedule and provides a power to extend, thereby excluding those areas from the Act’s scope. The Court remarked that a simpler, unambiguous formulation would have clarified the legislative intent.

Finally, the Court noted that, because the Attorney General had undertaken not to pursue the matter further, there was no need to set aside the acquittal order of the respondents, and that order therefore remained in force. Accordingly, the appeal was allowed.

In the final order the Court expressly declared that the judgment of acquittal previously rendered would not be set aside, thereby leaving that decision in full force. The record of the proceeding further noted the legal representatives who had appeared before the Court. For the appellant the Court listed the agent identified as G H Rajadhyaksha, indicating that this counsel acted on behalf of the party seeking relief. For the respondents the Court recorded the agent named Ganpat Rai, showing that this counsel represented the parties against whom the appeal had been made. By making these entries, the Court confirmed that the acquittal would remain effective and that the parties were duly represented by the mentioned counsel during the hearing of the appeal.