# ISHWAR DAS MALHOTRA v. UNION OF INDIA AND OTHERS

- **Citation:** [1972] 3 S.C.R. 411
- **Court:** Supreme Court of India
- **Decided:** 1972-02-08
- **Case number:** Criminal Appeal No. '93 of 1971
- **Bench:** S. M. $Il(RJ, A. N. Grover, A. N. Ray, D. G. Palekar, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ishwar-das-malhotra-v-union-of-india-and-others-5554
- **Pages:** 6

## Headnote

Jammu and Kammir (Extension of Laws) Act; 1956, Ss. 1 & 2Notification by Cen.tral Govern1nent appointing November 1, 1956, as date·
of coining into force of £.'(tension Act to Jammu and Kashmir-Exten·
sion of Delhi Special Police Establishment Act 1946 in the Schedule of
£~tension Act to Jan1n1u and Kashmir-Constitution (Seventh Amendment) Act, 1956-Ef!ect of.
By ti>! Constitution (Application to J ammu & Kashmir) Order, 1954,.
one of the entries on which Parliament could make laws was Entry 8!>
of List I -of the Seventh Schedule, dealing With 'Extension of the powers
and jurisdiction of members of a police force belonging to 'any State 1 to
any area outside that St~te'. The Jammu and Kashmir (Extension of
Laws) Act, 1956, (El'tension Act) received the President's assent on
September 25, 1956. Section I (2) provides that it shall .come into force
on such date as the Central Government may, by notification in the Official Gazette appoint.
By a notification ~ted October 10, 1956, November 1, 1956 was appointed as the date for the coming into force of the
Extension Act in the State of Jammu and Kashmir. Tlie effect of the
notification and s. 2 of the Act was that the Delhi Speei"1 Police Establishment Act, 1946, (the impugned Act)
which was one of the Act&
mentioned in the Sc'.hedule to the Extension Act, came into ·force in the
State from November
1, 1956.
On the same day the Constitution
(Seventh Amendment) Act, 1956, came into force and Delhi ceased to·
be a part C State and became Union Territory,
On the question whether the impugned Act ~
not validly extended
to. the State of Janunu and Kashmir, because, Delhi ceased to be a Part C
State on November 1, 1956,
HELD : (I) When the Extension Act was passed, Parliament had·
the competence to extend the impugned Act to the State of Jrunmu and
Kashmir, because; the Delhi Special Police. establishment was a police
force belonging to n Part C State. Assuming Parliament_ qeased to have
the power as from November 1, 1956, the Central Government could
validly issue the notification under s. I (2) appointing the date from whjch
the Extension Act would come into force, and as soon as this 'W:l"S done,
by virtue of s. 2, the impugned Act came into force in the State, {414 B-EJ
State of A~sam v. Brhvian Kurkalang, A.I.R. 1972 S.C. 223, followed.
(2) The general plrinciple that the executive power ccrreSpcinds to the·
legislative power, in An. 73, of the Constitution is subject to exceptiollJ.
The executive· power· to ex-te a valid Jaw does not dea~e if power fu
make that law has ceased to exist. (415 B-DJ
.
(3) In so far. as the impugned legislation· is a law with respect to
Entry 80, even if there was repugnancy it must override any laws repugnant thereto in Jammu and Kashmir. (415 D-EJ
412
SUPREME COURT REPORTS ·
[1972] 3 S.C.R.
(4) There is nothing in s. 1(2) of the Extension Act which makes
it obligatory that the notification should issue simult:Uleously with the
date of the coming into force of the Act.
On the contrary, the notification must ordinarily issue earliei' than the date of the coming into force
of the law.
The notification could have been issued any time after the
President had given his assent to t'he Aclt, '3Dd as Soon as the notification
was issued, s. 2 came into effect and all the Acts and Ordinances men·
tioned in the Schedule stood automatically extended and came into force
in the State· (416 A.CJ

## Text

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ISHWAR DAS MALHOTRA
v.
UNION OF INDIA AND OTHERS
February 8, 1972
411
[S. M. $Il(RJ, C.J., A. N. GROVER, A. N. RAY, D. G. PALEKAR
AND M. H. BEG, JJ.J
Jammu and Kammir (Extension of Laws) Act; 1956, Ss. 1 & 2Notification by Cen.tral Govern1nent appointing November 1, 1956, as date·
of coining into force of £.'(tension Act to Jammu and Kashmir-Exten·
sion of Delhi Special Police Establishment Act 1946 in the Schedule of
£~tension Act to Jan1n1u and Kashmir-Constitution (Seventh Amendment) Act, 1956-Ef!ect of.
By ti>! Constitution (Application to J ammu & Kashmir) Order, 1954,.
one of the entries on which Parliament could make laws was Entry 8!>
of List I -of the Seventh Schedule, dealing With 'Extension of the powers
and jurisdiction of members of a police force belonging to 'any State 1 to
any area outside that St~te'. The Jammu and Kashmir (Extension of
Laws) Act, 1956, (El'tension Act) received the President's assent on
September 25, 1956. Section I (2) provides that it shall .come into force
on such date as the Central Government may, by notification in the Official Gazette appoint.
By a notification ~ted October 10, 1956, November 1, 1956 was appointed as the date for the coming into force of the
Extension Act in the State of Jammu and Kashmir. Tlie effect of the
notification and s. 2 of the Act was that the Delhi Speei"1 Police Establishment Act, 1946, (the impugned Act)
which was one of the Act&
mentioned in the Sc'.hedule to the Extension Act, came into ·force in the
State from November
1, 1956.
On the same day the Constitution
(Seventh Amendment) Act, 1956, came into force and Delhi ceased to·
be a part C State and became Union Territory,
On the question whether the impugned Act ~
not validly extended
to. the State of Janunu and Kashmir, because, Delhi ceased to be a Part C
State on November 1, 1956,
HELD : (I) When the Extension Act was passed, Parliament had·
the competence to extend the impugned Act to the State of Jrunmu and
Kashmir, because; the Delhi Special Police. establishment was a police
force belonging to n Part C State. Assuming Parliament_ qeased to have
the power as from November 1, 1956, the Central Government could
validly issue the notification under s. I (2) appointing the date from whjch
the Extension Act would come into force, and as soon as this 'W:l"S done,
by virtue of s. 2, the impugned Act came into force in the State, {414 B-EJ
State of A~sam v. Brhvian Kurkalang, A.I.R. 1972 S.C. 223, followed.
(2) The general plrinciple that the executive power ccrreSpcinds to the·
legislative power, in An. 73, of the Constitution is subject to exceptiollJ.
The executive· power· to ex-te a valid Jaw does not dea~e if power fu
make that law has ceased to exist. (415 B-DJ
.
(3) In so far. as the impugned legislation· is a law with respect to
Entry 80, even if there was repugnancy it must override any laws repugnant thereto in Jammu and Kashmir. (415 D-EJ
412
SUPREME COURT REPORTS ·
[1972] 3 S.C.R.
(4) There is nothing in s. 1(2) of the Extension Act which makes
it obligatory that the notification should issue simult:Uleously with the
date of the coming into force of the Act.
On the contrary, the notification must ordinarily issue earliei' than the date of the coming into force
of the law.
The notification could have been issued any time after the
President had given his assent to t'he Aclt, '3Dd as Soon as the notification
was issued, s. 2 came into effect and all the Acts and Ordinances men·
tioned in the Schedule stood automatically extended and came into force
in the State· (416 A.CJ
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.
The Judgment of the Court was delivered bySikri, C;J. This appeal, by special leave,
is directed
against the judgment of the Janimu & Kashmir High Court holdjng 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 constitutional 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 Constitution (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
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I. D. MALHOTRA v. UNION (Sikri, C.J,)
413
80 of List I of the Seventh Schedule of the Constitution. This
entry reads as follows :
"Extension of the powers and jurisdiction of members 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 Government of the. State in which such area is situated; extension of the powers and jurisdiction ·of members of a
police force belonging to any State to railway areas outside the State."
By the Extension Act, which received the assent of the President on September 25, 1956, the Delhi Special Police Establishment Act, 1946, was extended to the State of Jammu and Kashmir 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 Establishment 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
414
SUPREME COURT REPORTS
[1972] 3 S.C.R
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.
B
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 compeC
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
9
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 November 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 .contended that because a District Council had been set up, the
Governor could not exercise the pO\ver. u_nder the Regulation and
apply Jaws.
The High Court had accepted the contention but
this Court reversed the judgment of the High Court, and after referring 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.
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r. D. MALHOTRA v. UNION (Sikri, C.J.)
415
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 extended 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 existing 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 Criminal 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 referred 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
416
SUPREME COURT REPORTS
[1972) 3 S.C.R.
il!lolOCl under the Extension Act which itself came into force only
A
from November I, 1956. There is nothing in sub-s.(2) of s. I
which makes it obligatory that the notification should issue simultaneously 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
B
President had given his assent, and as soon as the notification was
issued s. 2 came into effect and all the Acts and Ordinance mentioned 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.
C
In the result the appeal fails and is dismissed.
V.P.S.
Appeal dismissed.