State of Rajasthan v. Pannalal — 1957 DIGILAW 209 (RAJ)

Wanchoo, C.J.—This is an appeal by the State against the acquittal of Pannalal and eight ethers of an offence under sec. 73 of the Indian Mines Act, 1952 (No. XXXV of 1952) (hereinafter called the Act) read with rules 23 and 71 of the Indian Metalliferous Mines Regulations, 1926 (hereinafter called the Regulations) by a Magistrate of the First Class, Rajsamand. 2. The brief facts of the case are these. The Inspector of Mines made a complaint to the District Magistrate of Udaipur against these nine accused paying that they be convicted under sec. 73 of the Act for contravention of sec. 19 of the Act and rule 23 and 71 of the Regulations. The case was tried by a magistrate of the first class. He convicted one of the accused Sadiqali under sec. 73 of the Act for breach of sec. 19 of the Act, though in the operative part of the order, he does not mention these sections. Further, he seems to have acquitted the other eight accused of the offence under sec. 73 read with sec. 19 of the Act, though he does not say so in so many words in the order. By a separate order of the same date, he acquitted all the nine accused of breach of rules 23 and 71 of the Regulations on the ground that the Regulations were no longer in force after the coming into force of the Act of 1952. He has mentioned sec 66 of the Act in one part of the order ; but this is obviously a mistake for sec. 73, for the Inspector of Mines had never prayed for the prosecution of the accused under sec. 66. 3. The main question that falls for decision in this appeal is whether the view of the learned Magistrate that the Regulations are no longer in force after the Act of 1952 came on the statute book is correct. He has of course given no reason why he helds this. He seems to think that, because the Public Prosecutor, who in this case was probably a Prosecuting Sub Inspector, did not appear before him to show that the Regulations were in force, his duty was over and he need not himself consider as a court whether, in fact, the Regulations were in force. He merely mentioned sec. He seems to think that, because the Public Prosecutor, who in this case was probably a Prosecuting Sub Inspector, did not appear before him to show that the Regulations were in force, his duty was over and he need not himself consider as a court whether, in fact, the Regulations were in force. He merely mentioned sec. 88 of the Act of 1952, which has provided for repeal and thought that he had done his duty. 4. We are of opinion that the order of the Magistrate is manifestly wrong and the Regulations are in force in spite of the repealing sec. 88 of the Act. Learned counsel for the accused, however, urged before us that the Regulations were not in force because of the application of the Indian Mines Act, 1923 in the State of former Rajasthan and the promulgation of the rules framed under the Act of 1923 by the State of former Rajasthan as rules under their Ordinance No XXXIV of 1948. This Ordinance was passed by the State of former Rajasthan and came into force on the 28th of August, 1948. By this Ordinance, the Indian Mines Act, 1923, as amended up to date, was applied to the territory governed by the State of former Rajasthan. It also provided that all regulations made by the Government of India under secs. 29, 30 and 30-A of the Indian Mines Act, 1923 would apply till such time as they were amended by the State of former Rajasthan. So it was clear that the Indian Mines Act of 1923 and the Regulations framed under that Act were applicable to the area in which the mines of the accused are situate. 5. But the argument of learned counsel for the accused is chat after the coming into force of the Part B States (Laws) Act, 1951 (Act No. III of 1951), these rules and regulations, though they were deemed to continue under the second proviso to sec. 6 of the Part B States (Laws) Act, only continued as rules under the Ordinance (No. XXXIV of 1148) of the State of former Rajasthan. Therefore, when the Mines Act of 1923 was repealed by the Act of 1952, by sec. 88 the rules and regulations framed under that Act and in force in this area also came to an end and that sec. 24 of the General Clause Act did not apply. Therefore, when the Mines Act of 1923 was repealed by the Act of 1952, by sec. 88 the rules and regulations framed under that Act and in force in this area also came to an end and that sec. 24 of the General Clause Act did not apply. 6. The argument is put in this way. Rules which were in force before 1951 in this area, though they were exactly the same rules and regulations which had been framed under the Mines Act of 1923, were still rules and regulations under Ordinance No. XXXIV of 1948 of the State of former Rajasthan. Therefore, when section 88 of the Act of 1952 repealed the Indian Mines Act, 1923, sec. 24 of the General Glauses Act could not come into play with respect to these rules which were in force in this area. It is said that sec. 24 of the General Glauses Act applies to rules and regulations etc. framed under an Act which is repealed and re-enacted with or without modification, provided they have been framed by the Central Government. The argument continues that, as the rules and regulations in force in this area were not framed by the Central Government, but must be deemed to have been framed by the State of former Rajasthan, therefore when the Indian Mines Act, 1923 was repealed by Act of 1952, these rules, not having been framed by the Central Government, were not saved by the force of sec. 24. 7. We are of opinion that this argument overlooks the second proviso to sec. 6 of the Part B States (Laws) Act, 1951. That proviso specifically lays down that any rules and regulations made under the law in force in any Fart B State which was being repealed by the Act of 1951 would be deemed to have been made under the corresponding provisions of the Act or Ordinance which was being extended by the Act of 1951 to Part B States. Learned counsel urges that this is merely a fiction and that what sec. 24 saves are rules and regulations actually made by the Central Government under a Central Act and not rules supposed to have been made by fiction by the Central Government under a Central Act. Learned counsel urges that this is merely a fiction and that what sec. 24 saves are rules and regulations actually made by the Central Government under a Central Act and not rules supposed to have been made by fiction by the Central Government under a Central Act. It is enough to say that such provisions based on fiction are very common in legislative practice and what is enacted as deemed to be done is as what is actually done. In this particular case, we have a double fiction for the State of former Rajasthan never framed any rules and regulations itself, but merely provided by sec. 5 of Ordinance No. XXXIV of 1948 that the rules and regulations framed under the Mines Act of 1923 will apply to that area. So that we come back after this series of fiction to the basic fact that the rules which were applicable in the area of the State of former Rajasthan were rules made by the Central Government under the Act of 1923. Even on this basic fact, sec. 24 would apply. For, the two fictions in between would cancel each other ; but we need not go as far as that and it is enough to say that when the second proviso to sec. 6 of the Part B States (Laws) Act, 1951 provided that the rules which were in force in Part B States under the laws repealed would continue and would be deemed to have been framed under the laws extended by the Act of 1951, it meant that the rules in force under Ordinance No. XXXIV of 1948 became rules under the Mines Act of 1923 which was being extended to this State. Therefore, when sec. 88 of the Act of 1952 repealed the Mines Act of 1923 and re-enacted it, sec. 24 of the General Clauses Act came into play and any rules and regulations made under the Act of 1923 would continue till they were superseded by fresh rules under the new Act. In this case, the rules in force in this area must be held to be rules made under the Mines Act, 1923 by virtue of the second proviso to sec. 6 of the Part B States (Laws) Act, 1951. Therefore, these rules continued to be good, and it is no ones case that they have been superseded. In this case, the rules in force in this area must be held to be rules made under the Mines Act, 1923 by virtue of the second proviso to sec. 6 of the Part B States (Laws) Act, 1951. Therefore, these rules continued to be good, and it is no ones case that they have been superseded. In these circumstances, the Regulations for breach of which the accused were prosecuted are in full force and effect in the State of Rajasthan. The Magistrate was utterly wrong in holding that the Regulations were not in force merely because sec. 88 of the Act of 1952 repeals the Mines Act of 1923. 8. In this view of the matter we arc of opinion that the appeal must be allowed and the accused should stand their trial according to law. We, therefore, send the case back to the District Magistrate of Udaipur for nominating a Magistrate for retrial of the accused under sec. 73 of the Mines Act, 1952 for breach of rules 23 and 71 of the Regulations. There will be no retrial so far as breach of sec. 19 is concerned because that matter has been decided and there is no appeal by the State before us from the implied acquittal of other accused besides Sadiqali.