1953 (3) TMI 24 - SC - Indian Laws

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Court were:

(a) Whether the Bombay Building (Control on Erection) Act, 1948 (Act XXXI of 1948) was validly extended to the district of Ratnagiri by the notification issued on 15th January 1948 under the earlier Ordinance;

(b) Whether the notification issued under the repealed Ordinance continued to have force and effect after the repeal by the Act, pursuant to the provisions of section 15(1) of the Act and section 25 of the Bombay General Clauses Act, 1904;

(c) Whether the respondents were liable for commencing construction of a cinema theatre in Ratnagiri without obtaining the permission of the controller of buildings, given the above legal framework;

(d) The proper interpretation of the deeming provisions in section 15(1) of the Act and the scope of the notification extending the Ordinance and/or the Act to areas beyond those specified in the schedule.

2. ISSUE-WISE DETAILED ANALYSIS

Issue (a) and (b): Validity and Continuance of the Notification Extending the Ordinance/Act to Ratnagiri

The relevant legal framework included the Bombay Building (Control on Erection) Ordinance, 1948, which was initially applicable only to areas specified in its schedule. Section 1(4) empowered the provincial government to extend the Ordinance to other areas by notification, specifying the purposes for which the Ordinance would apply.

On 15th January 1948, the Government issued a notification extending the Ordinance to all areas in Bombay province other than those specified in the schedule, but limited its application to buildings intended for cinemas, theatres, and other places of amusement or entertainment. Ratnagiri was not in the original schedule, so the notification effectively brought Ratnagiri under the Ordinance's scope for cinema buildings.

Subsequently, the Ordinance was repealed by the Bombay Building (Control on Erection) Act, 1948 (Act XXXI of 1948), which also applied only to areas specified in its schedule but similarly empowered the government to extend its provisions by notification (section 1(3)). Section 15(1) of the Act expressly repealed the Ordinance and declared that sections 7 and 25 of the Bombay General Clauses Act, 1904, would apply to the repeal "as if that Ordinance were an enactment."

Section 25 of the Bombay General Clauses Act provides that any notification or order made under a repealed enactment shall continue in force and be deemed to have been made under the re-enacted provisions, unless inconsistent or superseded.

The Court interpreted these provisions to mean that the notification issued under the Ordinance continued to be effective after the Ordinance's repeal and was deemed to have been issued under the Act. The Court rejected the High Court's view that the notification only extended the Ordinance but not the Act, emphasizing that the deeming provision in section 15(1) of the Act gave the Ordinance the status of an enactment for the purposes of the repeal, and thus the notification's reference to the Ordinance must be read as extending the Act.

The Court relied on the principle that when a statute enacts a statutory fiction (here, deeming the Ordinance as an enactment), the courts must give full effect to that fiction and its logical consequences. It cited authoritative precedent stating that if a statute requires treating an imaginary state of affairs as real, the consequences flowing from that state must also be treated as real.

Therefore, the notification extending the Ordinance to Ratnagiri was also to be treated as extending the Act to that area for the specified purposes.

Issue (c): Liability of Respondents for Commencing Construction Without Permission

The respondents commenced construction of a cinema theatre in Ratnagiri on 15th August 1948 without obtaining permission from the controller of buildings, believing the Act did not apply to Ratnagiri since it was not specified in the schedule.

The prosecution charged them under section 9(2) read with section 4 of the Act, which made it an offence to commence erection of a building without the required permission.

The sub-divisional magistrate and the High Court acquitted the respondents on the ground that the Act had not been validly extended to Ratnagiri. However, the Supreme Court found this to be erroneous, holding that the notification extended the Act's provisions to Ratnagiri, making permission necessary.

Despite this, due to the Attorney-General's undertaking that no proceedings would be taken against the respondents and no interference would be made with the building's completion, the Court did not set aside the acquittal order.

Issue (d): Interpretation of Section 15(1) of the Act and Notification Language

The High Court held that the notification's use of the word "Ordinance" could not be read as "Act" by virtue of section 25 of the General Clauses Act, and thus it only extended the Ordinance, not the Act. The Court disagreed, emphasizing that section 15(1) of the Act explicitly declared the Ordinance to be an enactment for the purposes of the repeal, making the notification's language extend the Act.

The Court noted that the legislature's choice of language was not felicitous and had caused confusion, but the statutory scheme and deeming provisions required this interpretation. The Court rejected the suggestion that a proviso similar to that in the Cotton Cloth and Yarn (Control) Order, 1945, was necessary to effect the extension.

The Court underscored the importance of giving effect to the statutory fiction created by section 15(1), and that a literal construction ignoring the deeming provision would defeat the legislative intent.

3. SIGNIFICANT HOLDINGS

The Court held:

"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."

"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."

"When the 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 restored to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion."

"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."

Core principles established include the binding effect of statutory deeming provisions and the necessity of interpreting notifications and repeals in a manner consistent with the legislative intent to maintain continuity of regulatory schemes.

Final determination was that the Act was validly extended to Ratnagiri by the notification under the Ordinance, which continued in force and effect after repeal by operation of section 15(1) of the Act and section 25 of the Bombay General Clauses Act, thereby making the respondents liable for commencing construction without permission. However, due to the Attorney-General's undertaking, the acquittal was not disturbed.