State of Bombay v. Salat Pragji Karamsi
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Criminal Appeal No. 33 of 1955
Decision Date: 7 March 1957
Coram: J.L. Kapur, Natwarlal H. Bhagwati, B. Jagannadhadas, Syed Jaffer Imam, P. Govinda Menon
In this matter the State of Bombay was the petitioner and Salat Pragji Karamsi was the respondent. The appeal was decided by the Supreme Court of India on 7 March 1957. The judgment was authored by Justice J. L. Kapur, who was joined on the bench by Justices Natwarlal H. Bhagwati, B. Jagannadhadas, Syed Jaffer Imam, and P. Govinda Menon. The case is reported in the official law reports as 1957 AIR 517 and 1957 SCR 745. The central issue concerned the application of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887), particularly section 1, to the territory of Kutch under the Kutch (Application of Laws) Order, 1949.
The headnote of the decision explained that clause 3 of the Kutch (Application of Laws) Order, 1949, expressly made the Bombay Prevention of Gambling Act applicable to Kutch. Clause 4 of the same Order stipulated that any reference in the applied Act to “Provincial Government” or “Government” should be read as a reference to the “Chief Commissioner of Kutch”, and that any reference to “Province or the Presidency of Bombay” should be construed as referring to “Kutch or any part thereof”. The expression “shall be construed as” was therefore interpreted to mean “shall be read as”. Consequently, under the understanding created by this construction, section 1 of the Bombay Act as applied to Kutch empowered the Chief Commissioner of Kutch to extend any provision of that Act, by order published in the Official Gazette, to any local area or part of Kutch. The Court observed that the mere fact that the Kutch (Application of Laws) Order, 1949, made the Bombay Act applicable to the whole of Kutch did not, by itself, bring the Act into force throughout the territory. The whole Act, including the amended section 1, became applicable to Kutch only after a formal notification was issued. Accordingly, the Chief Commissioner issued a notification on 28 November 1950 bringing all provisions of the Bombay Act into force throughout Kutch with immediate effect. The Court held that the Chief Commissioner, acting under section 1 of the Bombay Act, retained the authority to issue such a notification and that this authority was not limited by article 239 of the Constitution. The notification was therefore valid, and the Act became operative in the portions of the State to which the notification applied.
The judgment was delivered in criminal appellate jurisdiction in Criminal Appeal No. 33 of 1955, filed under article 132(1) and article 134(1)(c) of the Constitution of India.
The judgment and order dated June 30, 1954, of the Court of Judicial Commissioner, Kutch, in Criminal Revision Application No. 13 of 1952, was appealed before the Supreme Court. Counsel for the appellant were Porus A. Mehta and B. H. Dhebar, while counsel for the respondent was H. J. Umrigar. The appeal was heard on March 7, 1957, and the judgment was delivered by Justice Kapur. Justice Kapur observed that two important questions required determination in this relatively modest case and that the State had filed the appeal not to obtain a conviction but because of the significance of the questions raised and the implications of the Judicial Commissioner’s decision.
The respondent had been convicted of an offence under section 12(a) of the Bombay Prevention of Gambling Act, 1887 (hereinafter the Bombay Act), as it was applied to Kutch. The penalty imposed was a fine of Rs 50, or, in default, simple imprisonment for fifteen days, together with forfeiture of the sums recovered from him at the time of the alleged offence. He sought a revision before the Judicial Commissioner of Kutch, who held that the Bombay Act had not been validly extended to, and therefore was not in force in, the State of Kutch. The correctness of that finding was the matter before this Court.
The trial magistrate had found sufficient evidence against the respondent, and his conviction would be correct if the Bombay Act were validly extended and operative in Kutch; consequently, the Judicial Commissioner’s acquittal would be erroneous. The alleged offence was said to have occurred on June 7, 1951. The magistrate convicted the respondent on July 26, 1951, and a revision to the Sessions Judge was dismissed. The respondent then filed a revision before the Judicial Commissioner, who allowed his petition on June 30, 1954, and granted a certificate under articles 132(1) and 134(1) of the Constitution.
Historically, Kutch had been an Indian State until 1948. The Maharao of Kutch transferred the governance of the State to the Dominion of India on June 1, 1948, after which the entire administration passed to the Dominion, rendering Kutch a centrally administered area. On July 31, 1949, the Central Government, exercising powers under section 4 of the Extra‑Provincial Jurisdiction Act, 1947 (Act XLVII of 1947), issued the Kutch (Application of Laws) Order, 1949. Clause 3 of that order applied certain enactments to Kutch from the date of its commencement, and one of those enactments was the Bombay Act.
Clauses 4 and 6 of the order were highlighted as significant. Clause 4 states: “Except as otherwise specifically provided in the first schedule to this order the enactments applied by this order shall be construed as if references therein to the authorities and territories mentioned in the first column of” (the sentence continues in the order). This provision formed part of the legal basis for the arguments concerning the applicability of the Bombay Act to Kutch.
The Court explained that the schedule printed in the order was intended to replace any reference to the authorities and territories listed in the first column with the corresponding authority or territory shown opposite in the second column. Thus, where the table indicated “Provincial Government, Governor,” the reference was to be read as “The Chief Commissioner of Kutch or Chief Controlling Revenue Authority.” Where the entry read “Government,” the substitution was “The Central Government or the Chief Commissioner, as the context may require.” The entry “High Court” was to be understood as “Court of the Judicial Commissioner, Kutch.” The term “Provinces of India, any Province” was to be taken as “Kutch or any part thereof of India or any part thereof.” Likewise, “The Province or Presidency of Kutch or any part thereof” was to be read as “Bombay or any part thereof.” In addition, the order permitted any Court to interpret the provisions of any enactment, rule, regulation, general order or by‑law applied to Kutch or any part thereof, with modifications that did not affect the substance, as may be necessary or proper in the circumstances.
On 1 August 1949 the territory of Kutch was designated a Chief Commissioner’s Province by operation of the States Merger (Chief Commissioners Provinces) Order, 1949. Clause 2(1)(c) of that order provided that, from the appointed day, the areas specified in the Second Schedule would be administered in all respects as if they were a Chief Commissioner’s Province and would be known as the Chief Commissioner’s Province of Kutch. The Second Schedule enumerated the portions of the pre‑1947 Indian States that would together form the new province. Clause 4 of the same order stipulated that all laws then in force, including those made under section 4 of the Extra‑Provincial Jurisdiction Act, 1947, would remain effective until replaced. Subsequently, on 1 January 1950 the Merged States’ Laws Act, 1949, came into force, extending a number of Central Acts to Kutch, notably the General Clauses Act, 1897. When the Constitution of India became operative on 26 January 1950, the Adaptation of Laws Order, 1950, was issued the same day. Clause 4(1) of that order required that whenever an expression appearing in column 1 of the printed table occurred in an existing Central or Provincial law—except in a title, preamble, citation or description—such expression should be replaced by the expression opposite it in column 2, and any necessary grammatical adjustments should be made. The relevant portion of the table set “Province” opposite “State” and “Provincial …” opposite “State ….” Finally, clauses 15 and 16 of Part III‑Supplementary of the order declared that, unless otherwise provided, powers vested in any person or authority immediately before the appointed day would continue until altered by competent legislation, and that references in existing laws to any authority competent at the time of their enactment would, once a corresponding new authority had been created under the Constitution, be treated as references to that new authority until formally repealed or amended.
Clause 15 of the Adaptation of Laws Order states that any power that, immediately before the appointed day, was vested in or exercisable by a person or authority in any part of India shall remain vested in or exercisable by that person or authority until a different provision is made by a legislature or other body that has the power to regulate the matter. Clause 16 provides that, subject to the Order, any reference – in any existing law and in any form of words – to an authority that was competent at the date that law was passed to exercise powers, discharge functions, or perform any duties in any part of India shall, where the Constitution has created a new corresponding authority, continue to have effect as if the reference were to the new authority, until the reference is duly repealed or amended.
On 28 November 1950 the Chief Commissioner of Kutch issued a notification in which he declared that, in the exercise of the powers vested in him under section I of the Bombay Prevention of Gambling Act, 1887 (IV of 1887) as applied to Kutch by the Kutch (Application of Laws) Order, 1949, all the provisions of that Act would, with immediate effect, come into force throughout the whole of Kutch. After examining all the relevant Acts, Orders and the 1950 Adaptation of Laws Order, the learned Judicial Commissioner concluded that all powers which had been vested in or exercisable by any other person or authority before 26 January 1950 had ceased to be so vested or exercisable by that person or authority. Consequently, the Commissioner held that only the President, whether exercising the powers personally or through the Chief Commissioner, could exercise the powers of a State Government, and that the Chief Commissioner himself could not. On that basis, the Commissioner found that the Chief Commissioner was not competent to issue the November 28 1950 notification.
The State appealed the Judicial Commissioner’s order of acquittal, raising two questions. First, it submitted that the Bombay Act had been validly extended to, and was in force throughout, Kutch by virtue of the Kutch (Application of Laws) Order, 1949; therefore any violation of the Act should have been punishable under that Act. Second, it argued that even if the Bombay Act had not been extended to Kutch by the 1949 Order, the Act became applicable to Kutch by the Chief Commissioner’s notification of 28 November 1950, and thus the respondent’s conviction was proper and the Judicial Commissioner’s setting aside of that conviction was erroneous. To address the first contention, the Court noted that it must determine the effect of the various provisions of the Acts and Orders mentioned. Clause 4 of the Kutch (Application of Laws) Order, 1949 uses the phrase “shall be construed as if reference therein…”. The Court interpreted those words to mean that they should be read as a substitution, so that wherever the Bombay Act mentions “Provincial Government” that term must be read as “Chief Commissioner of Kutch”.
In interpreting the Bombay Prevention of Gambling Act as it was to operate in Kutch, the Court explained that every reference in the Act to the “Provincial Government,” to “Government,” to “Province,” or to the “Presidency of Bombay” must be read as referring respectively to the Chief Commissioner of Kutch, to the Chief Commissioner of Kutch, and to Kutch or any part thereof. Accordingly, when the Constitution came into force, those expressions no longer remained in the Act as it applied to the State of Kutch, because they had been substituted by the terms “Chief Commissioner of Kutch” and “Kutch or any part thereof.” The Court observed that the judgment of the learned Judicial Commissioner was erroneous because it failed to give effect to these substituted words. Instead, the Judicial Commissioner had placed undue emphasis on the phrase “shall be construed as,” treating it as a tool for interpreting the original Bombay Act rather than as an indication that the original words were to be replaced by the corresponding terms applicable to Kutch.
The Court further held that clause 2(1)(c) of the States Merger (Chief Commissioners’ Provinces) Order 1949, which provided for the administration of the State of Kutch as if it were a Chief Commissioner’s Province, did not alter the position of the substituted terms. Similarly, the extension of the General Clauses Act under the Merged States’ Laws Act had no effect on the interpretation. Clause 4 of the Adaptation of Laws Order 1950 was relevant because it substituted the words “Province,” “Provincial,” and “Provinces” with “State” or “States” wherever those words appeared in any existing law. Moreover, clauses 15 and 16 of the same order ensured that the powers previously vested in the authorities continued to be vested in those same authorities. By reading all these provisions together, the Court concluded that, as applied to Kutch, the phrase “Presidency of Bombay” in the Bombay Act must be replaced by “Kutch or any part thereof,” and the phrase “Provincial Government” must be replaced by “Chief Commissioner of Kutch.” The powers granted under the various Acts therefore remained with the persons who originally held them, namely the Chief Commissioner of Kutch. The General Clauses Act did not have any operative effect on the modified wording of the Bombay Act. Consequently, section 1 of the Bombay Act, when read as it would apply in Kutch, should be understood to read: “This Act may be cited as the Bombay Prevention of Gambling Act, 1887. All or any of its provisions may be extended from time to time by the Chief Commissioner of Kutch by an order published in the Official Gazette to any local area in Kutch or any part thereof.”
The Chief Commissioner was empowered, by an order published in the Official Gazette, to cancel or vary at any time any order previously made under the relevant section. The portion of that section stating, “It extends to the city of Bombay, to the Island of Salsette, to all Railways and railway station houses without the said city and island and to all places not more than three miles distant from any part of such station houses respectively,” could not remain in force when the Act was applied to Kutch because those areas were not located within the State of Kutch or any part thereof; consequently clause 6 of the Kutch (Application of Laws) Order, 1949 would become operative for that purpose. It was then argued that merely applying the Bombay Act to Kutch made the Act operative and brought it into force throughout the entire territory of Kutch. That argument was rejected on the ground that, if the Act were applied to Kutch, section 1 of the Bombay Act would have to be excluded, which is an incorrect approach to the issue. The correct position, as the Court explained, was that the whole Act, including the amended section 1 set out earlier, became applicable to Kutch, but a formal notification was required before any part of Kutch could be placed under its operation. In other words, the Act was technically applied to Kutch, yet none of its provisions became effective until the necessary notification was issued. The Court further observed that the earlier judgment of Baxi J.C. in Agaria Osman Alarakhya v. The Kutch State, which had been relied upon in the present case, correctly addressed the requirement of a notification under section 1 of the Bombay Act. Accordingly, the first contention raised by counsel for the appellant was found to be unsustainable, and the Court held that without a proper notification the Bombay Act could not be said to have been validly applied to the State of Kutch. The discussion then turned to the second issue, namely the validity of the notification dated 28 November 1950. The learned Judicial Commissioner had held that the Chief Commissioner of a Part C State may act only to the extent authorized by the President, as prescribed by the Constitution, and therefore the Bombay Act should be interpreted with the adaptation that the rule of construction contained in the Kutch (Application of Laws) Order, 1949 is omitted. He further stated that even if the substitution of expressions mentioned in paragraph 4 of the Adaptation of Laws Order, 1950 were not effected, the rule of construction in the 1949 order that interpreted the phrase “Provincial Government” as “Chief Commissioner, Kutch” no longer survived. Article 239 of the Constitution, which deals with the administration of Part C States, provides that, subject to other provisions of the Part, a State listed in Part C of the First Schedule shall be administered by the President, acting to the extent he deems appropriate, through a Chief Commissioner.
The provision allowed the President to appoint either a Chief Commissioner or a Lieutenant‑Governor to administer a Part C State. That constitutional article had been cited by counsel to argue that the entire administration of a Part C State must be carried out by the President acting through a Chief Commissioner. However, the Court observed that invoking that article did not remove the powers that the Chief Commissioner possessed under any other statute or under the authority cited in A.I.R. (1951) Kutch 9 Order. Specifically, the Court noted that under section 1 of the Bombay Act the Chief Commissioner of Kutch was empowered to issue notifications that would make the provisions of that Act operative in Kutch or in any part of Kutch. The Court further held that those statutory powers remained intact and were not displaced by Article 239 of the Constitution, particularly because clause 15 of the Adaptation of Laws Order, 1950 expressly preserved the Chief Commissioner’s authority to issue such notifications. Consequently, the Court concluded that the notification issued by the Chief Commissioner on 28 November 1950 was valid, was issued under proper legal authority, and therefore brought the Bombay Act into force in the areas to which the notification applied. On that basis, the Court found that the learned Judge had been incorrect in holding the notification to be invalid, a view that formed the basis of the acquittal of the accused. Accordingly, the judgment under appeal was set aside. The appeal filed by the State was allowed, the judgment of the learned Judicial Commissioner acquitting the respondent was overturned, and the earlier magistrate’s order sentencing the respondent to a fine of rupees 50, along with the default sentence and forfeiture, was restored. The appeal was granted.