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1969 DIGILAW 423 (ALL)

Lakhpat v. State

1969-12-19

M.N.SHUKLA

body1969
ORDER M.N. Shukla, J. - This criminal revision raises a question of law of outstanding importance inasmuch as it challenges the validity of a prosecution commenced under the UP Roadside Land Control Act, 1945, (hereinafter called the Act) on the ground that the said Act had ceased to be in force at the time when it was enacted by the UP Legislature in the year 1945. Before dealing with that question, however, a number of other points on which the Applicants impugn their conviction and sentence for the offence u/s 13 of the Act may be disposed of. 2. The prosecution case in brief was that the Applicants had made illegal constructions on 'controlled' land along the Meerut Baghpat Road in Mile 16 furlongs 1 and 2 on the left side of village Daluhera without the permission of the Collector. The Applicants denied the making of such constructions within the aforesaid limits and stated that they had been wrongly prosecuted. 3. I have heard the learned Counsel for the parties in the case and have been taken through the relevant evidence also. 4. The first point which was urged on behalf of the Applicants was that this particular village was not named in the Gazette notification and consequently the disputed land could not be deemed to be a part of the 'controlled' area so as to attribute to the Applicants the offence alleged to have been committed by them. Section 3 of the Act in so far as it is relevant is quoted below: Declaration of controlled area.--(1) The State Government may, by notification in the official Gazette, declare any land within a distance of four hundred and forty yards from the centre line of any Road to be a controlled area for the purpose of this Act: (Provided that in the case of a national highway, the highway itself shall not be deemed to be controlled area). (2) Not less than three months before making a declaration u/s (1) the State Government shall cause to be published in the Official Gazette and in at least two newspapers printed in a language other than English a notification stating that they propose to make such a declaration and specifying therein the boundaries of the land in respect of which the declaration is proposed to be made and copies of every such notification or of the substance thereof shall be published by the Collector in such manner as he thinks fit at his office and at such other places as he considers necessary within the said boundaries. (3) Any person interested in any land included within the said boundaries may, at any time before the expiration of thirty days from the last date on which a copy of such notification is published by the Collector, object to the making of the declaration or to the inclusion of his land or any part of it within the said boundaries. 5. Thus, the terms of the section make it clear that the essential requirement with regard to the land in respect of which the declaration is proposed to be made is that its boundaries must be specified. That is the main test which must be applied to the legality of a Gazette notification in this regard. So long as the boundaries are precisely specified, trivial or technical omissions would not vitiate the notification. The flaw pointed out by the learned Counsel in the Gazette notification in the instant case is that whereas the offending constructions were made in village Daluhera, no such village appears in the list appended to the notification and the only village which might purport to correspond to the village in question is the one mentioned at item No. 15 as village Bahlaura. It was contended that the two villages are apparently dissimilar and the notification therefore cannot be deemed to have complied with the provisions of Section 3 of the Act. This argument, however, does not appeal to me. As already pointed out, the essence of the notification is the specification of the boundaries. It was contended that the two villages are apparently dissimilar and the notification therefore cannot be deemed to have complied with the provisions of Section 3 of the Act. This argument, however, does not appeal to me. As already pointed out, the essence of the notification is the specification of the boundaries. I find that the opening words of the notification state that 220 feet area on either side of the Meerut-Baghpat Road from the centre of the Road from Meerut onwards towards Baghpat side upto the length of 28 miles is 'controlled area.' Thus, the "controlled area" has been clearly defined by specifying the two termini i.e. the initial and the outer limits. Besides, the prosecution examined G.K. Mittal (P. W. 1) Overseer in the case who deposed that the village in question is Daluhera and the name was actually mentioned in the map prepared for the purpose of the case. Thus, there was no vagueness as to the village which was intended to be included in the controlled area. 6. Secondly, it was argued by the learned Counsel for the Applicant that the constructions made by them came within the exemption provided by Section 16 of the Act. In other words, it was contended that the land on which the constructions were made was abadi of the village and according to the saving Clause 16(a) of the Act nothing in the Act shall apply to the erection or reerection of buildings upon land included in the inhabited site of any village as entered and demarcated in the revenue records ....This point was raised before the courts below and was decided against the Applicants with the finding that they had failed to file any extract of the village papers to show that the constructions were within the abadi and thus covered by Section 16 of the Act. The learned Counsel presented an application before me praying for filing additional evidence to prove the allegation that the land in question was included within the abadi area of the village. I do not find sufficient cause made out for permitting the Applicants to adduce additional evidence in revision at this stage. The application is, therefore, rejected and I am not satisfied that the Applicants succeeded in establishing the plea of exemption u/s 16 of the Act. 7. I do not find sufficient cause made out for permitting the Applicants to adduce additional evidence in revision at this stage. The application is, therefore, rejected and I am not satisfied that the Applicants succeeded in establishing the plea of exemption u/s 16 of the Act. 7. Thirdly, the notification in question was assailed on the ground that it did not comply with Section 3 of the Act, in as much as the declaration about the 'controlled area' was not published in at least two newspapers printed in a language other than English. This point was raised in ground NO. 7 of the Memo of Revision. I, however, find that this defence was not raised in the courts below. In my opinion it relates essentially to a question of fact and it is not fair that the Applicants be permitted to take such plea now. I am fortified in the view that I am taking in this regard by a full Bench decision of this Court in Khurkhur v. State 1969 AWR 234 wherein it was held that the prosecution was not required to establish compliance of Sub-sections (2) to (6) of Section 3 of the Act unless the accused expressly raised the question that the procedure prescribed by the aforesaid provisions had not been followed and where that question was not raised in the courts below it could not be allowed to be raised in the High Court. 8. Lastly, the learned Counsel raised a question of law which is of general importance. It was urged that the UP Roadside Land Control Act (UP Act No. 10 of 1945) having been enacted by the Governor under the powers assumed u/s 93(2) of the Government of India Act, 1935, after having proclaimed Emergency in November 1939, could not operate beyond three years from the date of the proclamation of the Emergency and the Act which was made in 1945 by the Governor in exercise of the powers assumed by him in 1939 would be inoperative. Reliance in that connection was placed upon the provisions of Section 93 of the Government of India Act, 1935, which is reproduced below: 93.--(1) If at any time the Governor of a Province is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of this Act, he may by Proclamation-- (a) declare that his functions shall, to such extent as may be specified in the Proclamation, be exercised by him in his discretion: (b) assume to himself all or any of the powers vested in or exercisable by any Provincial body or authority: and any such Proclamation may contain such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Act relating to any Provincial body or authority. Provided that nothing in this sub-section shall authorise the Governor to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend, either in whole or in part, the operation of any provisions of this Act relating to High Courts. (2) Any such Proclamation may be revoked or varied by a subsequent Proclamation. (3) A Proclamation under this section-- (a) shall be communicated forthwith to the Secretary of State and shall be laid by him before each House of Parliament. (b) unless it is a Proclamation revoking a previous Proclamation shall cease to operate at the expiration of six months: Provided that, if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of twelve months from the date on which under this sub-section it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years. (4) If the Governor, by a Proclamation under this section, assumas to himself any power of the Provincial Legislature to make laws, any law made by him in the exercise of that power shall, subject to the terms thereof, continue to have effect until two years have elapsed from the date on which the Proclamation ceases to have effect, unless sooner repealed or re-enacted by Act of the appropriate Legislature and any reference in this Act to Provincial Acts, Provincial laws, or Acts or laws of a Provincial Legislature shall be construed as including a reference to such a law. (5) The functions of the Governor under this section shall be exercised by him in his discretion and no Proclamation shall be made by a Governor under this section without the concurrence of the Governor-General in his discretion. A perusal of the above section would reveal that a Proclamation of Emergency shall in the first instance cease to operate at the expiration of six months as provided by Sub-section (3)(b) of Section 93. The proviso to that sub-section, however, enumerates certain eventualities in which the life of the Proclamation may be prolonged. If appropriate resolutions are passed by both Houses of Parliament, the Proclamation can extend for a further period of 12 months from each subsequent resolution, but the entire period cannot extend beyond the maximum limit of three years, under the proviso to Sub-section (3)(b). 9. There is, however, yet another enactment to which reference need be made with the aid of which a Proclamation can have a lease of life extending beyond the period of three years aforesaid. 9. There is, however, yet another enactment to which reference need be made with the aid of which a Proclamation can have a lease of life extending beyond the period of three years aforesaid. The India and Burma (Temp and Miscellaneous Provisions) Act, 1942, was enacted on 22-10-1942 and Section 1 of the Act which is relevant in this context runs as follows: Notwithstanding anything in the proviso to Sub-section (3) of section ninety-three of the Government of India Act, 1935, a proclamation under that section made during the was period shall not cease to be in force by reason only that it has been in force for three years and any such proclamation which would but for this section, cease to be in force for that reason shall, if the resolutions in that behalf required by the said proviso are from time to time passed by both Houses of Parliament, continue in force, unless revoked, till the expiration of twelve months after the end of the war period. The effect of the above section is that the three years' limit with regard to Proclamation of Emergency u/s 93 of the Government of India Act 1935 can be exceeded if resolutions in that behalf are from time to time passed by both Houses of Parliament and in that contingency the Proclamation would continue in force unless revoked, till the expiration of the 12 months after the end of the war period. The phrase "war period" has been defined in Section 6 of the Act which is quoted below: 6 (1) In this Act, the expression "the war period" means the period beginning with the twenty-fourth day of August, nineteen hundred and thirty, nine and ending when the Emergency Powers (Defence) Act, 1939, ceases to be in force.... 10. The Emergency Powers (Defence) Act, 1939, remained in force till the year 1946. So if appropriate resolutions were from time to time passed by the British Parliament, the Proclamation of Emergency could continue until the year 1946. The India and Burma (Temp and Miscellaneous Provisions) Act, 1942 came into effect on 22-10-1942. Section 6 of the Act refers to the Emergency Powers (Defence) Act, 19519 and states that "the war period" would continue until the Emergency Powers (Defence) Act, 1939, ceases to be in force. The India and Burma (Temp and Miscellaneous Provisions) Act, 1942 came into effect on 22-10-1942. Section 6 of the Act refers to the Emergency Powers (Defence) Act, 19519 and states that "the war period" would continue until the Emergency Powers (Defence) Act, 1939, ceases to be in force. This indicates that on 22-10-1942, when the India and Burma (Temp and Miscellaneous Provisions) Act, 1942, came into force the Emergency Powers (Defence) Act, 1939, itself came into force on 24-8-1939. It follows that in order to be in force on 22-10-1942, it must have been renewed for a period of one year i.e. upto 24-8-1943, in accordance with Section 11 of the Act which reads as follows: 11--(1) Subject to the provisions of this section, this Act shall continue in force for the period of one year beginning with the date of the passing of this Act and shall then expire; Provided that, if at any time while this Act is in force, an address is presented to His Majesty by each House of Parliament praying that this Act should be continued in force for a further period of one year from the time at which it would otherwise expire, his Majesty may by Order in Council direct that this Act shall continue in force for that further period. (2) Notwithstanding anything in the preceding sub-section, if His Majesty by Order in Council declares that the emergency that was the occasion of the passing of this Act has come to an end, this Act shall expire at the end of the day on which the Order is expressed to come into operation. (3) The expiry of this Act shall not "affect the operation thereof as respects things previously done or omitted to be done. 11. The above section gives to the Act a life of only one year. But in 1945 again the Emergency Powers (Defence) Act 1945 was passed. (3) The expiry of this Act shall not "affect the operation thereof as respects things previously done or omitted to be done. 11. The above section gives to the Act a life of only one year. But in 1945 again the Emergency Powers (Defence) Act 1945 was passed. Section 1 of this Defence Act of 1945 reads as follows: For Sub-section (1) of Section eleven of the Emergency Powers (Defence) Act, 1939 (in persuance of which that Act is limited to expire on the twenty fourth day of August, ninteen hundred and forty five, unless at any time while it is in force an Address is presented to His Majesty by each House of Parliament praying that it should be continued in force for a further period of one year from the time at which it would otherwise expire) there should be substituted the following sub section. (1) subject to the provisions of this section this Act shall continue in force until the expiration of the period of six months beginning with the twenty fourth day of August, nineteen hundred and fourty five and shall then expire. 12. Thus, according to Emergency Powers (Defence) Act 1945, the Emergency Powers (Defence) Act 1939 will itself continue till 24-2-1946 i.e. six months from 24-8-1945. Hence, the war period continued till 24-2-1946. 13. Therefore on 22-12-1945 when the UP Roadside Land Control Act was enacted by the Governor there was a war period within the meaning of Section 1 of the India and Burma (Temporary and Miscellaneous Provisions) Act 1942. According to Section 1 of this latter Act of 1942 the Proclamation u/s 93 of the Government of India Act 1935 was to continue till after twelve months of the war period i.e. till 24-2-1947. 14. Sub-section (4) of Section 93 of the Government of India Act 1935 lays down that the laws thus made shall have effect until two years have elapsed from the date on which the Proclamation (sic) to have effect. The Proclamation u/s 93 of the Government of India Act 1935 as seen in the preceding paragraph should remain effective till 24-2-1947. But the Proclamation was revoked on 1-4-1946 vide notification No. 1238/G.S.-91-1946, dated 1-4-1916 published in UP Gazette (Extraordinary) of the same date. Thus, the Act enacted by the Governor u/s 93 of the Government of India Act 1935 would continue till 1-4-1948. 15. But the Proclamation was revoked on 1-4-1946 vide notification No. 1238/G.S.-91-1946, dated 1-4-1916 published in UP Gazette (Extraordinary) of the same date. Thus, the Act enacted by the Governor u/s 93 of the Government of India Act 1935 would continue till 1-4-1948. 15. Before the expiry of this period on 1-4-1948 itself the UP Expiring Laws Continuance Act 1948 was passed and thereby UP Roadside Land Control Act 1945 had been made a permanent Act. 16. The question still remains to be seen as to whether the necessary resolutions were passed from time to time by the British Parliament as contemplated by Sub-section (3) of Section 93 which I have already quoted. It would be evident from the proviso of the said Sub-section that if an address is presented by each house of the Parliament to His Majesty to that effect, the Emergency Powers (Defence) Act, 1939, would continue in force for a further period of one year from the time on which it would have otherwise expired. 17. The UP Roadside Land Control Act, 1945, came into effect on 22-12-1945. As already observed by me, the Proclamation of Emergency u/s 93 of the Government of India Act, 1935, was made on 3-11-1939. It is recent history that in the year 1936 elections were held and as a result of Provincial Autonomy in the UP Congress Government was installed in the Province in the year 1937. In 1939 the Congress Ministry resigned and then a State of Emergency was proclaimed by the Governor of UP. The question, therefore, arises as to whether the British Parliament passed resolutions from time to time as contemplated by the proviso to the Sub-section (3)(b) of Section 93 of the Government of India Act, 1935, so as to extend the life of the Proclamation upto the date of the passing of the UP Roadside Land Control Act. With considerable diligence and assiduous research, the learned Government Advocate Sri Rishi Ram has unearthed and placed before me all the relevant notifications which complete the chain of Legislative measures or resolutions commencing from the Proclamation issued on 3-11-1939, under the Government of India Act, 1935 and ending with the UP Roadside Land Control Act, 1945. 18. The first Proclamation issued on 3-11-1939, would have ceased to operate in accordance with Sub-section (3)(b) of Section 93 of Government of India Act, 1935, at the expiration of six months. 18. The first Proclamation issued on 3-11-1939, would have ceased to operate in accordance with Sub-section (3)(b) of Section 93 of Government of India Act, 1935, at the expiration of six months. Consequently, both Houses of Parliament passed resolutions on 19-4-1940, approving the continuance in force of the Proclamation u/s 93 of the Government of India Act, 1935. Those resolutions were published in the UP Gazette dated 18-5-1940, Part I-A, at p. 273. 19. The maximum limit of three years would have normally expired in October 1942, but before the expiration of that period the British Parliament again stepped in and passed the necessary resolution. The House of Commons passed the resolution on 28-4-1942, approving the continuance in force of the Proclamation u/s 93 of the Government of India Act, 1935. A similar resolution was passed by the House of Lords on 29-4-1942. The minutes of the aforesaid proceedings were published in the UP Gazette Part I.A, dated 6-6-1942, at p. 161. The effect of the above resolution was to extend the life of the Proclamation by 12 months. 20. Before the expiration of that period necessary resolutions were again passed by both Houses of Parliament. The House of Commons passed a resolution on 30-3-1943, approving the continuance in force of the Proclamation issued u/s 93 of the Government of India Act, 1935. The extract of the said resolution and the proceedings of the House of Commons were published in the UP Gazette, Part II, dated 24-7-1943, at p. 243. The House of Lords passed a resolution to the same effect on 6-4-1943 and the minutes of those proceedings were published in the UP Gazette Part II dated 21-8-1943, at p. 259. 21. A similar procedure was adopted in the year 1944. The House of Commons as well as the House of Lords passed resolutions on 18-4-1944 and the minutes of the proceedings of both Houses of the Parliament were published in the UP Gazette, Part II, dated 27-5-1944, at p. 173. 22. The same process was resorted to in the year 1945. A resolution was passed by the House of Lords on 18-4-1945 and by the House of Commons on 20-4-1945 and extracts from the proceedings of the two Houses were published in the UP Gazette, Part I-A, dated 26-5-1945, at p. 131. 23. 22. The same process was resorted to in the year 1945. A resolution was passed by the House of Lords on 18-4-1945 and by the House of Commons on 20-4-1945 and extracts from the proceedings of the two Houses were published in the UP Gazette, Part I-A, dated 26-5-1945, at p. 131. 23. By virtue of Sections 1 and 6 of the India and Burma (Temporary and Miscellaneous Provisions) Act, 1942, the resolutions passed by the House of Lords and the House of Commons on 18-4-1945 and 20-4-1945, respectively would continue to be effective till the expiration of 12 months after the end of the war period, which works out to be in the year 1947, as the 'war period' would end on 24-2-1946. But much before that date the UP Roadside Land Control Act was passed and came into effect on 22-12-1945. Thus, I find no force in the contention of the learned Counsel for the Applicants that there was any lacuna in the continuity of the Proclamation issued initially by the Governor u/s 93 of the Govt. of India Act, 1935 on 3-11-1939, so as to make the UP Roadside Land Control Act inoperative. 24. Therefore, there is no force in this revision and it is accordingly dismissed. The stay order dated 6-12-1967 is vacated.