C J SHAH Vs. CHHABALAL GANPATLAL
LAWS(GJH)-1966-9-21
HIGH COURT OF GUJARAT
Decided on September 10,1966

C.J.SHAH Appellant
VERSUS
CHHABALAL GANPATLAL Respondents

JUDGEMENT

- (1.) THIS is an appeal by the Food Inspector, Godhra Borough Municipality, against the acquittal of respondent No. 1 under Section 16 of the Prevention of Food Adulteration Act, One of the main grounds of acquittal is that the rules made by the Gujarat Government under Section 24 of that Act were not framed after the previous publication but the previous publication was made by the Bombay Government and not by the Gujarat Government. In answer to this, the learned Counsel for the appellant relies on Clauses (1) and (5) of Section 23 of the General Clauses Act. The whole Section 23161 reads as follows: 23. Provisions applicable to making of rules or by-laws after previous publication. ? Where, by any Central Act or Regulation, a power to make rules or byelaws is expressed to be given subject to the condition of the rules or byelaws being made after previous publication, then the following provisions shall apply, namely: (1) the authority having power to make the rules or byelaws shall, before making them,, publish a draft of the proposed rules or byelaws' for the information of persons likely to be affected thereby; (2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the Government concerned prescribes, (3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration; (4) the authority having power to make the rules or byelaws, and, where the rules or byelaws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or byelaws from any person with respect to the draft before the date so specified; (5) the publication in the Official Gazette of a rule or byelaw purporting to have been made in exercise of a power to make rules or byelaws after previous publication shall be conclusive proof that the rule or byelaw has been duly made. At first sight, Clause (5) seems to be a complete answer. But we have to see whether the words "after previous publication" qualify the words "to have been made" or whether qualify the words "power to make the rules". The expression "purporting to have been made" must go with the expression "after previous publication", and then only the sense would De proper. Clause (5) should read thus; "the publication in the Official Gazette of a rule or byelaw purporting to have been made after previous publication in exercise of a power to make rules or byelaws shall be conclusive proof that the rule or byelaw has been duly made. " The contestation that Section 24 of the Prevention of Food Adulteration Act empowers the State Government to make rules or byelaws after previous publication and therefore Clause (5) of Section 23 of the General Clauses Act would come into play cannot be sustained. It is true that in the Gazette Notification, Section 24 of the Prevention of Food Adulteration Act is referred to. A better view would therefore be to hold that the expression "after previous publication" goes with the expression "purporting to have been made". The rule-making authority must, therefore, make rules after previous publication, If it purports to do so, it shall be conclusive proof that the rule or byelaw has been duly made. As Section 23 prescribes lengthy procedure of previous publication, Sub-section (5) dispenses with proof that such procedure has been followed only in cases where the rules purport to be made after previous publication. In this case, the notification does not purport to have been made after previous publication. Therefore, Clause (5) of Section 23 of the General Clauses Act does not help the learned Counsel for the appellant. Clause (1) of Section 23 of the General Clauses Act also does not help, because the question in controversy is who is the authority who made the previous publication and not the manner of previous publication. The authority having power to make rules or byelaws mentioned in Clause (1) can only exercise the power on the date when the rules and byelaws are made, The contention that the relevant date is the date of the previous publication is rejected.
(2.) IT is next contended relying on Section 24 of the Prevention of Food Adulteration Act that the State Government referred to in that section does not necessarily mean the State Government, which made the previous publication and that the State Government which made the rules need not be the State Government, which made the previous publication. The contention that the State Government means the State Government on the date of the previous publication, which had the power to make rules on the date of the publication is rejected.
(3.) IT is next contended that Section 24 of the Prevention of Food Adulteration Act should be construed in view of Section 161 of the Bombay Reorganization Act, 1960. Section 89 of the Act reads as follows: 89. Power to construe laws. ?notwithstanding that no provision or insufficient provision has been made under Section 28 for the adaptation of a law made before the appointed day, any Court, tribunal or authority, required or empowered to enforce such law may, for the purpose of facilitating the application in relation to the State of Maharashtra or Gujarat, construe the law in such manner, without affecting the substance, as may be necessary or proper in regard to the matter before the Court, tribunal or authority. It refers to a law which is to be enforced by the Court. This Court is not trying to enforce any clause of the General Clauses Act. There is, therefore, no question to construe any clause of the General Clauses Act in a peculiar manner in view of the Bombay Reorganization Act. The Bombay Reorganization Act has nothing to do with the General Clauses Act. ;


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