Bombay High Court
Pannalal Nemasa Jain vs State Of Maharashtra And Ors. on 19 December, 1986
Equivalent citations: 1987(2)BOMCR333
JUDGMENT H.W. Dhabe, J.
1. The petitioner, who is proprietor of 'Santosh Chitra Mandir, Deulgaon Raja", District Buldana, feeling apprehensive of the touring cinema licence that may be granted to the respondent No. 4 under Rule 101(3)(b) and (c) of the Maharashtra Cinemas (Regulation) Rules, 1966, as amended by the Maharashtra Cinemas (Regulation) (Amendment) Rules, 1986, (hereinafter referred to as the Amended Rules), has preferred this petition in this Court. The Amendment Rules are framed by the Notification dated 9-6-1986 issued by the State Government under sub-section (1) Clauses (a) and (b) of sub-section (2) and sub-section (3) of section 9 of the Bombay Cinemas (Regulation) Act, 1953 (for short the Act). It is not in dispute that the Amendment Rules were published in the Official Gazette after they were made by the State Government.
2. The only question which is urged in the instant writ petition is that unless and until the rules are laid before the House of the State Legislature and thereafter unless and until they are published in the Official Gazette as required by section 9(5) of the Act, Amended Rules cannot come into force and, therefore, the submission is that no action of granting any licence can be taken under the Amended Rules. The above contention, therefore, calls for a proper construction of section 9 of the Act, which confers upon the State Government the power to make rules under the Act.
3. Sub-section (1) of section 9 provides that the State Government may make rules for the purpose of carrying into effect the provisions of the Act by a notifications published in the Official Gazette. Sub-section (2) of section (2) of section 9, without prejudice to the generality of the power under sub-section (1) enumerates specifically the purposes for which the rules can be framed by the State Government. Sub-section (4) makes the power of the State Government to frame rules subject to the conditions of previous Publication. Sub-section (5), whose construction is in issue in the instant writ petition is reproduced below for the sake of convenience :
"5. All rules made under this section shall be laid for not less than thirty days before the each House of the State Legislature as soon as possible after they are made, and shall be subject to such modifications as the State Legislature may make, during the session in which they are so laid or the session immediately following, and publish in the Official Gazette".
4. Before we proceed to construe sub-section (5) of section 9 of the Act, it is necessary to notice provisions of section 24 of the Bombay General Clauses Act, 1904, section 24 of the Bombay General Clauses Act enacts provisions which are necessary to be followed when the power to make rules is subject to the condition of previous publications. Clause (a) of the said section 24 requires the rule making authority to publish the draft of the proposed rules for the information of persons likely to be affected hereby. Clause (b) requires the publication of the draft rules in the manner prescribed by the State Government or the Central Government if the condition with respect to previous publication so requires or otherwise as the rule making authority may deem sufficient. Clause (c) requires the date to be specified in the draft rules after which the draft would be taken into consideration for finalising the rules. Clause (d) then provides for consideration of objections or suggestions made by the persons who are likely to be affected or made by the authority whose sanction, approval or concurrence is necessary for framing the rules. Clause (e) provides that the publication of the rules in the Official Gazette would be conclusive proof that the rule or bye-law has been duly made.
5. It is urged on behalf of the petitioner that the requirement of the publications of the rules in the Official Gazette in sub-section 9(1) of the Act is merely indicative of the manner in which the power to make rules conferred thereunder is to be exercised by the State Government. The submission is that the procedure for making the rules which are subject to the condition of previous publication is laid down in section 24 of the Bombay General Clauses Act, and therefore, after following the said procedure, the stage of final publication of the rules comes only after the requirement of laying before the House in sub-section (5) of section 9 is followed. Emphasis in support of the above submission is laid on the words "and publish in the Official Gazette". It is urged that the above requirement of publication in the Official Gazette under sub-section (5) governs the publication of the final rules also after they are laid before the House of the Legislature for not less than 30 days are required by the said sub-section and not merely the modifications in the rules which the State Government may make during the session in which they are so laid or the session immediately following.
6. In short, the submission is that the procedure of framing the rules commences on the publication of the draft rules and ends only when the said rules are published in the Official Gazette after they are laid before the House. The alternative submission is that even though the rules may be published in the Official Gazette before they are laid before the House, they would come into operation only after a period of 30 days after they are laid before the House unless any modifications is made by the State legislature in which case they would come into operation after the modifications are published in the Official Gazette. On the other hand, it is urged on behalf of the State and the respondent No. 4, that the rules come into force immediately after they are made and published in the Official Gazette by the State Government. It is then that, according to them, they are required to be laid before the House under sub-section (5) and if the House makes any modifications in the rules, it is such modifications only for which publication in the Official Gazette is necessary because such modifications would then come into force when they are so published in the Official Gazette.
7. In interpreting section 9(5) of the Act, the cardinal rule of construction of a statute which needs to be borne in mind is that the words of a statute are to be understood in their natural, ordinary or popular sense and the phrases and sentences are to be construed according to their grammatical meaning unless such a construction would lead to some absurdity or unless there is something in the context, or in, the object of the statute to suggest the contrary, Lord Brougham observed in Crawford v. Spooner, (1846)4 N.I.A. 179 (P.C.) page 181 that "The true way", is to take the words as the legislature have given them, and to take the meaning which the words given naturally imply, unless where the construction of those words is, either by the Preamble or by the context of the words in question, controlled or altered. The speech of Lord Simion of Claisdale in the case of Suthendran v. Immigration Appeal Tribunal, (1976)3 All.E.R. 611 (H.I) page 616 which is reproduced below given a golden rule of construction in this regard :
"Parliament is prima facie to be credited with meaning what is said in an Act or Parliament. The drafting of statutes, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply 'the golden rule' of construction that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense; so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objective the language may be modified sufficiently to avoid such disadvantages, though no further."
8. Bearing the above rule of construction in mind, it would be useful to paraphrase the said sub-section (5) in order to gather its requirements :
(a) All rules made under this section shall be laid for not less than thirty days before each House of the State Legislature as soon as possible after they are made, and
(b) shall be subject to such modifications as the State legislature may make, during the session in which they are so laid or the session immediately following, and
(c) publish in the Official Gazette.
In construing the language of the said sub-section (5), it is urged on behalf of the petitioner that there is a grammatical error and the word 'publish' used therein should be in the past tense i.e. "Published and that it governs the aforesaid Clause (a) of sub-section (5) so that according to the learned Counsel for the petitioner, the requirement of publication in the Official Gazette would come after the rules are laid before the houses. On the other hand, the rival submission is that the expression "publish in the Official Gazette" would in its natural grammatical reading of sub-section (5) would go with Clause (b). The language of the material portions of sub-section (5) as sought to be interpreted by the rival sides is reproduced below:---
(a) All rules made under this section shall be laid for not less than thirty days before each House of the State Legislature as soon as possible after they are made, and published in the Official Gazette (according to the petitioner):
(b) And (all rules) shall be subject to such modifications as the State Legislature may make and publish in the Official Gazette (as interpreted by the State and the respondent No. 4).
9. The purpose of reproducting the above sub-section in the above manner on the basis of the submission advanced by the parties is that even if sub-section (5) of section 9 of the Act is read as canvased on behalf of the petitioner, its grammatical construction does not lead to the conclusion that the rules have to be Published in the Official Gazette after they are laid before the House. It is clear that the clause "and published in the Official Gazette" in its grammatical sequence will have to be read with the expression "after they are made" which would mean that the rules are to be laid before the house after they are made and published in the Official Gazette which would clearly run counter to the construction sought to be put on behalf of the petitioner.
10. In our view, the construction sought to be put on section 9(5) of the Act on behalf of the State as well as the respondent No. 4 appears to be natural and grammatically correct. For the said construction it is not necessary to introduce any correction in the word "publish" and to read it in the past tense. According to the said construction the requirement of publication in the Official Gazette would be applicable to the modifications which the State Legislature may make after the rules are laid before the house, because the relevant part of sub-section (5) would then read "and shall be subject to such modifications as the State Legislature may make, and publish in the Official Gazette". If as shown above the requirement of publication in the Official Gazette is thus applicable to the modifications only which the State Legislature may make, then the pharseology under the said sub-section that all rules shall be subject to such modification would indicate that the rules made by the State Legislature have come into force already when they are Gazetted by the State Government, as required by section 9(1) of the Act, particularly when such "laying rules" are held to be directory and not mandatory by the Supreme Court in the case of Jan Mohd, v. State of Gujarat, and Atlas Cycle Industries Ltd. v. State of Harayana, . The decision of the Andhra Pradesh in the case of D.K. Krishnan v. Secretary Regional Transport Authority, Chittoor, A.I.R. 1956 A.P. 129, which is approved by the Supreme Court in the case of Atlas Cycle Industries Ltd. v. State of Harayana, fully supports the view taken by us. Neither any material is brought before us nor can it be said that the above construction would lead to some absurdity or is contrary to the object of the Act. There is, therefore, no reason why the said grammatical meaning should not be given to section 9(5) of the Act.
11. The result of the above discussion is that according to the procedure laid down under section 9 of the Act read with section 24 of the Bombay General Clauses Act, the procedure for framing rules would be that after its previous publication and after following the procedure under section 24 of the General Clauses Act the rules would be finally published by the State Government as required by section 9(1) of the Act and would, there after came into force from that date unless some other date is notified by the State Government for coming into force of the rules made by it. However, after the rules are laid before the House are required by section 9(5) of the Act, it is open to the State Legislature to make modification in the rules if it so thinks but such modifications by the State Legislature are required to be published in the Official Gazette so that they would come into operations from the said date unless some other date is notified by the State Legislature for coming in force of the modifications.
12. The learned Counsel for the petitioner has brought to our notice the provisions about laying rules in certain other enactments which, according to him, would show that if the intention of the legislature is to make such rule only directory, a clear language has been used in the laying rule to show that the rule is already operative when it is published in the Gazette and it is only the modification made by the State Legislature which would be operative after it is so made by it. Although the learned Counsel for the petitioner has referred to several laying rules in several enactments, we reproduce below the laying rule in section 321(4) of the Maharashtra Municipalities Act, 1965 since the other laying rules relied upon on behalf of the petitioner are mostly analogous to the same:---
"(4) Every rule made under this Act shall be laid as soon as may be after it is made before each House of the State Legislature while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, and notify such decision in the Official Gazette, the rule shall from the date of publication of such notification have effect only in such modified form or be of no effect, as the case may be; so however any such modifications or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule".
12-A The learned Counsel for the petitioner has also relied upon section 67(4) of the Bombay Shops and Establishment Act, 1948, which is in material particulars analogous to section 9(5) of the Act. We have checked the said sub-section with the original Gazette of the Amending Act No. 26 of 1961, by which the said sub-section was introduced in the above Act. We find that the word "Publish" therein is in the present tense and not in the past tense. The said provision will, therefore, have the same interpretation which we have put upon section 9(5) of the Act. Although section 321(4) of the Maharashtra Municipalities Act, 1965, reproduced above elaborate in its language which the draftsmen might have used by their experience about interpretation of the laying rules, we are of the view that there is no material difference in the substance of the laying rule in section 9(5) and the aforesaid section 321(4) of the Municipalities Act and, therefore, section 9(5) would have the same meaning which section 321(4) of the Maharashtra Municipalities Act, 1965 has by its clear and elaborate language. No assistance, therefore, can be drawn from the language used in the provisions of section 321(2) of the Municipalities Act and other analogous provisions to give different meaning to the language in section 9(5) of the Act.
13. The next contention on behalf of the petitioner which needs to be considered is whether the rules would come into operation, eventhough published in the Official Gazette 30 days after they are laid before the House for a period of 30 days and not before unless any modification is sought to be made by the Legislature in the said rules in which case according to the petitioner, they would come into operation after the modifications are published in the Official Gazette. In support of the above contention, reliance is placed on behalf of the petitioner upon the decision of the Supreme Court in D.S. Garwal v. State of Punjab, as well as upon the decision of the Supreme Court in the reference case Re : Kerala Education Bill, 1957, A.I.R. 1958 S.C. 956. The submission on behalf of the petitioner is that as held in the aforesaid decisions of the Supreme Court the rules must be laid before the House for not less than 30 days before they come into force. In appreciating the above submission on behalf of the petitioner, it must be seen that the question which was raised before the Supreme Court in the above case was about the excessive delegation to the Government in framing the rules. In negativing the said contention, one of the tests applied by the Supreme Court was that by a "laying procedure" provided under the said statutes the Parliament or the State Legislature keeps strict vigilance and control over its delegates. It is in this context that the Supreme Court observed in D.S. Garwal's case cited supper that the Parliament has taken care to see that these rules were laid on the table of the House for a period of 14 days before they would come into force. It is, therefore, clear that in the above cases, the question of interpretation of a "laying rule" was itself not directly before the Supreme Court. It may also be further seen that either under section 3 of the All India Services Act, 1951, or under Clauses 36 and 37 of the Kerala Education Bill, 1957, there was no provision that the rules made should be published in the Official Gazette.
14. The above decisions in our view, therefore, cannot be any authority upon the construction of a laying rule itself in preference to the later decisions of the Supreme Court in the case of Jan Mohd. v. State of Gujarat, and Atlas Cycle Industries Ltd. v. State of Harayana, relied upon on behalf of the respondent No. 4 which are directly upon the construction of a "laying rule" itself. The Supreme Court has held the laying rule to be directory and not mandatory in the above decisions, with the result that the rules under consideration in the said decisions would come into operation immediately after they are published in the Gazette by the rule making authority. The said cases of the Supreme Court in which directly the issue of construction of a "laying rule" is considered are, therefore, binding upon us. The above view taken by us on section 9(5) of the Act is consistent with the view taken by the Supreme Court in the above decisions and is fully supported by the decision of the Andhra Pradesh High Court in the case of D.K. Krishnan v. Secretary, Regional Transport Authority, A.I.R. 1956 A.P. 129 cited supra. The contention raised on behalf of the petitioner on the basis of the decisions of the Supreme Court in case of D.S. Garewal v. State of Punjab, and Re : Kerala Education Bill, 1957, A.I.R. 1958 S.C. 956 is, therefore, rejected. No other points were urged in this writ petition.
In the result, the instant writ petition fails and is dismissed. In the circumstances, however, there would be no order as to costs in this petition. Rule discharged.