Ishwar Das Malhotra v. Union of India and Others

- Sikri, C;J. This appeal, by special leave, is directed against the judgment of the Janimu & Kashmir High Court hold-jng that the Delhi Special Police Establishment Act, 1946, (25 of 1946) was validly exrended to the State of Janimu and Kashmir by the J animu and Kashmir (Extension of Laws) Act, 1956- :hereinafter referred to as the Extension ·Act. The High Court decided this question on a reference made by the Special Magis~ trate, under s. 432 of the Code of Criminal Procedure, before ·whom the challan had been filed under the Ranbir Penal Code on November 29, 1967. The only question involved in this .appeal before us is as to the validity of the aforesaid extension.

In order to appreciate the contentions of the learned coiinsel in this respect, it is necessary to give an account of the constitu-tional provisions applicable to the State of Jammu and Kashmir. On January 26, 1950 the Constitution of India came into foree. In exercise of the powers conferred by cl. (1 ) of art. 3 70 of the Constitution of India, the President, in consultation with the ·Government of the State of Jammu & Kashmir, made the Consti-tution (Application to Janimu and Kashmir) Order, 1950. This order was superseded by .another order in 1954. By that order, ~ne of the entries on which Parliament could make laws was entry 80 of List I of the Seventh Schedule of the Constitution. This entry reads as follows :

"Extension of the powers and jurisdiction of mem-bers of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Govern-ment of the. State in which such area is situated; exten-sion of the powers and jurisdiction ·of members of a police force belonging to any State to railway areas out-side the State."

By the Extension Act, which received the assent of the Presi-dent on September 25, 1956, the Delhi Special Police Establish-ment Act, 1946, was extended to the State of Jammu and Kash-mir in the following manner. Section 1 (2) of the Extension Act provided that "it shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint." Section 2 provided as follows :

"(l) The Acts and Ordinance mentioned in the Schedule and all rules, orders and regulations made thereunder are hereby extended to and shall be in force in, the State of Jammu and Kashmir.

(2) With effect from the commencement of this Act, the Acts and Ordinance mentioned in the Schedule shall be amended as specified rtherein."

The Schedule which contained the Delhi Special Police Esta-blishment Act, 1946, amended it by omitting the words "except the State of J ammu and Kashmir" from section 1.

A notification was issued appointing November 1, 1956, as the date for the coming into force of the Extension Act in the State of Jammu and Kashmir. The effect of the notification and Sec. 2 mentioned above was that the Delhi Special Police Esta· blishment Act, 1946, came into force in the State of Jammu and Kashmir from November 1, 1956.

The Constitution (Seventh Ame"fidment) Act, 1956 also came into force on November 1, 1956. The State of Delhi, which was a part 'C' State immediately before the Seventh Amendment be· came a Union Territory. A new article, art. 372A, was also inserted in the Constitution enabling the President to adapt la\vs in force immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956.

This article has no application to the State of J ammu and Kashmir and, therefore, any adaptations made by the President in exercise of the powers under art. 3 72A can have no application to the State of J ammu and Kashmir.

In view of these constitutional changes, it is contended on be· half of the appellant, that under entry 80 Parliament could only extend the powers and jurisdiction of members of the Police Force belonging to any State, and as Delhi became a Union Territory and ceased to be a State on November 1, 1956, Parliament had no jurisdiction to extend the Delhi Special Police Establishment Act, 1946 to the State of Jammu and Kashmir.

It seems to us that the impugned Act was validly extended and our reasons for coming to this conclusion are as follows. When the Extension Act was passed, Parliament had the compe-tence to extend the impugned Act to the State of Jammu and Kashmir because the Delhi. Special Police Establishment, was a police force belonging to a Part 'C' State.The contention of the learned counsel that because Parliament could not extend the powers and jurisdiction of members of lhe Delhi Special Police Force nfter November I, 1956, assuming it to be correct; dt>es not invalidate the powers exercised earlier. When the Extension Act was passed there is no doubt that the Parliament had the power. The fact that the Parliament ceased to have power, as from Nov-ember I, l 956, does not make any difference.

This Court had occasion to deal with a similar question in State of Assam v. Ka Bchyien. Kurka}ang.(\) In that case, para 19 (b) of Schedule 6, Constitution of India, authorised the Gover· nor to make regulations for ihe peace and good government of a district. This power was vested in the Governor till the settiilg up of a District Council for an autonomous district. It w.as .con-tended that because a District Council had been set up, the Governor could not exercise the pO\ver. u_nder the Regulation and p apply Jaws. The High Court had accepted the contention but this Court reversed the judgment of the High Court, and after re-ferring to J. K. Gas Plant Manufacturing Co. Ltd. v. King Emperor;(') Ram Kirpa/ v. State of Bihar;(8 ) and Cajee v. U. Jormanik Siem,(') held that although the power of the Governor to legislate ended when the District Council was cons· tituted, the power conferred under the regulation on the Governor to bring into force the laws set out in the Schedule continued and would continue so long as the regulation remained on the statute book. The same principle applies here. The Central Govern~ent could validly issue a notification under sub-s. (2) of ... Si;G . .1 appointing the date from which the Act would ·CQllle· into fori;e, and as soon as this notification was made, by virtue of s. 2, the

(1) [19721 S.C.R. 223. (2) [l~47; F,CR. 141. (ll [1970] 1 s.c.R. 2n (4) ft96tJ 1 s.cn. 1~0. impugned Act came into force in the State. The Constitution (Seventh Amendment) Act did not destroy the efficacy of sub-s. (2) of s. 1. ·

The learned counsel contended that this principle conflicts with the general principle that executive power corresponds to legislative power and it could not have been intended that the ex-tended law should operate when there was no corresponding legislative power. In this connection he referred to art. 73. The general principle is subject to exceptions. Article 73 itself opens with the words "subject to the provisions of this Constitution." This is one of the exceptions envisaged by the Constitution. Other such exceptions are in art. 277 and art. 372. Although legislative power may not ~xist to legislate on the subject of exist-ing laws executive power would be exercised under the laws saved by art. 277 and art. 372. No authority has been cited in support of the contention that executive power to execute a valid law ceases to exist if power to make that law has been transferred to another authority or ceases to exist.

It was next contended that the impugned Act was repugnant to and inconsistent with the J anrnm and Kashmir Code of Crimi-nal Procedure and Jamniu and Kashmir Police Act, which were already in existence. before the Delhi Special Police Act, 1946 came into force. But in so far a< the impugned legislation is a bw with respect to entry 80, even if there is repugnancy it mu~t override any laws repugnant thereto in Jammu and Kashmir. Art. 246, as applicable to Jammu and Kashmir, reads thus :

"246( l) Notwithstanding anything in clause (2), Parliament has the exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List");

(2) Parliament, and, subject to clause ( l), the Legislative of any State also, have power to make laws with respect to any bf the matters enumerated in List III in the Seventh Schedule (in this Constitution refer-red to as the "Concurrent List").

When the ifnpugned Act was extended Parliament had no power to make laws with respect to any items in the Concurrent List, but the impugned law is fully covered by entry 80 and there is no need to rely on the Concurrent list. Therefore, art. 254 can have no application to the present case.

H was also contended that the impugned Act could not have been validly extended by a notification dated October 10, 1956, 13-L887Sup.CI/n il!lolOCl under the Extension Act which itself came into force only from November I, 1956. There is nothing in sub-s.(2) of s. I which makes it obligatory that the notification should issue simul-taneously with the date of the coming into force of the Act. On the contrary, notification must ordinarily issue earlier than the date of the coming into force of the Jaw. It seems to us clear that the notification could have been issued any time after the President had given his assent, and as soon as the notification was issued s. 2 came into effect and all the Acts and Ordinance men-tioned in the Schedule, stood automatically extended and came into force.

The learned counsel did not press the point regarding art. 1-l of the Constitution.

In the result the appeal fails and is dismissed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. '93 of 1971.

L. M. Singhvi, P. N. Tewari, 0. C. Mathur, l .. B. Dadacharji :and Ravinder Narain, for the appellant.

Niren De, Attorney-General tor India, lagadish Swarup, 'Solicitor-General of India, R. N. Sachthey and R. L. Mehta, for respondents Nos. 1 & 2.

/ Advocate-General for the State of lammu and Kashmir and .R.. N. Sachthey, for respondent No. 3.