# THE STATE OF BIHAR v. HIRALAL KEJRIWAL AND ANOTHER - **Citation:** [1960] 1 S.C.R. 726 - **Court:** Supreme Court of India - **Decided:** 1957-05-09 - **Case number:** Criminal Appeal No. 36of1958 - **Bench:** Syed Jafer Imam, K. SuBBA RAo - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-bihar-v-hiralal-kejriwal-and-another-1817 - **Pages:** 11 ## Headnote Repeal of Statute-Saving clause-Interpretation of-Cotton Textiles (Control of Movement) Order, r948, whether continues in force-Essential Supplies (Temporary Powers) Act, r946 (XXIV oj r946),, ss. r(3) and 3(r)-Essential Commodities Ordinance, r955, (Ordinance I of r955), s. r6-Esscntial Commodities Act, r955 (X of r955), S, I6. Appeal by special leave-Interference in-Constitution of India, Art. r36. In exercise of the powers under s. 3 of the Essential Supplies (Temporary Powers) Act, 1946, the Central Government made the Cotton Textile (Control of Movement) Order, 1948. The 1946 Act was to expire on January 26, 1955, but before that, on January 21, l be made by any authority whatsoever, under any law repealed hereby and in force immediately before the commencement of this Act, shall, in so far as such order may be made under this Act, be deemed to be made under this Act and continue in. force, and accordingly any appointment made, licence or permit granted or direction issued under any such order and in force immediately before such commencement shall continue in force until and unless it is superseded by any appointment made, licence or permit granted or direction issued under this Act. (3): The provisions of sub-section (2) shall be without prejudice to the provisions contained in section 6 of the General Clauses Act, 1897 (X of 1897), which shall also apply to the repeal of the Ordinance or other law referred to in sub-section (1) as if such Ordinance or other law had been an enactment. The said provisions may be briefly summarized thus : Under the Act of 1946, the Central Government had the power to make an order for regulating or prohibiting the production, supply and distribution of essential commodities. That Act itself provided that it would cease to have effect on January 26, 1955. In exercise of the powers conferred under s. 3 of the said Act, the Central Government made the Cotton Textile (Control of Movement) Order, 1948, prohibiting any person Subba Rao J. 732 SUPREME COURT REPORTS [1960(1)] I959 from transporting cloth, among others, without the -_- . permit of the Textile Commissioner. Before the Act The Stat•;. of Bihar ceased to have effect, i.e., on January 26, 1955, the HiralatKejdwal Ordinance was promulgated on January 21, 1955, and Another conferring on the Central Government a power similar to that conferred upon it under s. 3 of the 1946 Act. subba Rao J. The said Ordinance also provided for saving clauses in respect of certain things done under the 1946 Act. On April 1, 1955, the Act was passed practically reenacting the same provisions of the Ordinance, and thereunder the same power exercised by the Central Government under s. 3 of the 1946 Act and s. 3 of the Ordinance was preserved. The Act also provided for repeals and savings. The question, therefore, is whether, on the date of commission of the offence, the Order whereunder the prosecution was launched was subsisting or whether it ceased to exist. It is common case that an Order made under an Act ceases to have any legal force after the expiry of the term for 'Y hi ch the Act is made. But it is contended that the Order survived the expiry of the 1946 Act by reason of the saving clauses provided by the Ordinance and the Act. Ordinarily, the Order should have expired on January 26, 1955. Unless it was saved by s.16 of the Ordinance the saving clause of the Act could not operate on it. We shall, therefore, consider the question from two aspects: (i) whether s. 16 of the Ordinance saved the operation of the Order; and (ii) if it saved it, whether s. 16(2) of the Act gave it a further lease of life. Section 16 of the Ordinance is in two parts. Under the first part, "any order made or deemed to be made under the Essential Supplies (Temporary Powers) Act, 1946, and in force immediately before the commencement of this Ordinance shall, in so far as such order may be made under this Ordinance, be deemed to be made under this Ordinance and continue in force." The necessary condition for the operation of this part of s. 16 is admittedly complied with. The Order made under s. 3 of the 1946 Act can be made under s. 3 of the Ordinance ; and, if so, by reason of the express words of the section, the Order must be deemed to be made under the Ordinance and continue to be in force S.C.R. SUPREME COURT REPORTS 733 after its promulgation. But it is said that the second z959 part of the section cuts down the wide amplitude of the phraseology used in the first part. After stating The;:;~~ of that the said Order shall continue to be in force, the v. second part proceeds to state " and accordingly any Hiralal Kejriwal appointment made, licence or permit granted or direcand Another tion issued under any such order and in force imh I Subba Rao J. mediately before sue commencement shal continue in force unless and until it is superseded by any appointment made, licence or permit granted or direction issued under this Ordinance". If the Order continues in force, the argument proceeds, the second part of the section becomes otiose, for the appointment made, licence or permit granted or direction issued under the Order automatically continues in force, and, therefore, there is no necessity for enacting the second part of s. 16. The anomaly occurs even if the argument be accepted, for, in that event the first part,becomes unnecessary : The same result can be achieved by enacting only the second part of s. 16 and omitting the first part altogether. To ascertain the meaning of a section it is not permissible to omit any part of it : the whole section should be read together and an attempt should be made to reconcile both the parts. There is no ambiguity in the provisions of the first part of the section. In clear and unambiguous terms it posits the continuation in force of the Order notwithstanding the repeal of the Act; thereafter, it proceeds to enumerate certain past acts done under the Order, and in force immediately before the commencement of the Ordinance and says that they will continue in force in consequence of the continuance of the Order. The word "accordingly", which means consequently, indicates that the enumerated acts will not continue in force but for the continuance of the Order itself: they depend upon the continuation of the Order. It is said that this interpretation imputes tautology to the legislature, and, therefore, should not be accept~d. A scrutiny of the section shows that the second part is not really redundant, as at the first blush it appears to be. Under s. 16 of the Ordinance, the Order made under the Act of 1946 continues to be 93 734 SUPREME COURT REPORTS [1960(1)] z959 in force till another Order is made under the Ordinance. It covers two periods : (i) the period up to the date of The State of f h O d Bihar the commencement o t e r inance; and (ii) the v. period thereafter. The first part gives life to that Hiralal Kejriwal Order, and, therefore, the acts authorised under that and Another Order can be done subsequent to the coming into force Subba Rao]. of the Ordinance. But a question may be raised whether the past acts done under that Order are saved by the continuance of the Order, or whether the acts already done are covered by the words that the "Order shall continue in force". The second part appears to have been enacted for the purpose of a voiding this difficulty or, at any rate, to dispel the ambiguity. Under the section both the Order and the acts previously done under the Order are saved. If so, it follows that the.Order was saved and the prosecution authorized by the Order could legitimately be launched after the Ordinance came into force. Even so, it is contended that the Order saved by a. 16 of the Ordinance fell with the repeal of that Ordinance and was not continued under the Act. This argument is based upon the provisions of s. 16(1) and (2) of the Act. Section 16 has three sub-sections. For the present argument we are concerned only with subss. (1) and (2) of s. 16. Sub-section (2) is a repetition of s. 16 of the Ordinance. But it is said that s. 16(l)(b) of the Act indicates that the Order was not saved under that section. Under s. 16(l)(a), the Essential Commodities Ordinance, 1955, is repealed, and under s. 16( l )(b) " any other law in force in any State immediately before the commencement of this Act in so far as such law controls or authorizes the control of the production, supply and distribution of, and trade and commerce in, any essential commodity " is also repealed. The argument is that the Order is comprehended by the words "any other law" in cl. (b) of s. 16(1), and, therefore, when that Order is repealed under cl. (b) of a. 16(1), it is unreasonable to hold that it is restored under sub-s. (2) of s. 16, To put it in other words, an intention cannot be imputed to the legislature to repeal an order under one sub-section 11-nd restore it by another .sub-section. If we may say $.C.R. SUPREME COURT REPORTS 735 so, there is a fallacy underlying this argument. The words" any otherlaw" in s. l6(l)(b) can. only mean any law other than the Essential Commodities Ordin" ance, 1955, mentioned ins. 16(l)(a). It is admitted that there are laws other than the said Ordinance in force in many States controlling the production, supply and distribution of essential commodities. An order made or deemed to be made under the Commodities Ordinance, 1955, cannot be described as a law other than Essential Commodities Ordinance whereunder it is made. Such an order is comprehended by cl. (a) of s. 16(1) itself, and, therefore, cl. (b) thereof has no application to it. In this view, an interpretation different from that we have put on the provisions of s. 16 of the Ordinance cannot be given to sub-s. (2) of s. 16 of the Act. ]!'or the reasons we have given in interpreting the provisions of s. 16 of the Ordinance, we hold that undei• s. 16(2) both the order and the acts enumerated in the second part of it survived the expiry of the Ordinance and continued in force under the Act. For the above reasons, we hold that the prosecution was validly launched against the accused under s. 3 of the Order. Even sq, the. learned Counsel for the respondents contends that it is not a fit case for this Court to inter· fere under Art. 136 of the Constitution. The offence was alleged to have been committed on August "30, 1955, i.e., more than four years ago. The varying views expressed by the Courts indicate that there was a plausible justification for reasonable belief on the part of the accused that the Order did not survive the ex11iry of the life of the 1946 Act. 'fhe order of the High Court dismissing the application for leave to appeal to the Supreme Court shows that it was filed in contravention of the provisions of r. 28 of the Patna High Court Rules. Under the said Rules the application should have been filed immediately after the judgment was delivered. In the affidavit filed in supvort of that application the only reason given for not doing so was that the appellant did not give the necessary instructions. The learned Judge of the High Court rightly did not accept that reason as a sufficient r959 The State of Bihar v. Hiralal Kejriwal and Another Subba Rao f· '959 The State of Bihar v. Hiralal Kejriwal and Another Subba Rao ]. '959 736 SUPREME COURT REPORTS [1960(1)] ground for permitting the application tO be filed at a later stage. In the application for special leave filed in this Court, though it was stated that the application filed in the High Court for certificate was rejected, the reason for the rejection was not disclosed. Further, the State, presumably, filed this appeal to get the legal position clarified. We also believe that public interest does not require that the stale matter should be resuscitated. In the circumstances, we would be justified not to exercise our discretionary jurisdiction, and we accordingly dismiss the appeal. A ppe