THE STATE OF BOMBAY versus PANDURANG VINAYAR CHAPHALKAR AND OTHERS

Citation: [1953] 1 S.C.R. 773 · Decided: 13-03-1953 · Supreme Court of India · Bench: MEHR CHAND MAHAJAN · Disposal: Appeal(s) allowed

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Judgment (excerpt)

S.C.R. 
SUPREME COURT REPORTS 
773 
THE STATE OF BOMBAY 
v. 
PANDURANG VINAYAR CHAPHALKAR 
AND OTHERS. 
[MEHR CHAND MAHAJAN and·BHAGWATI JJ.] 
Bombay Bnilding (Control on Erection) Act, 1948, s. 15-Born-
bay General Clauses Act, 1904, s. 25-Repeal of Ordinance and re-
enactment as Act-Notifications issued under Ordinance whether 
continue in force-Construction of Act-Stat,.tory fictions. 
The Bombay Building (Control on !Crection) Ordinance of 
1948 applied to certain areas mentioned in the Schedule to the 
Ordinance, and in exercise of the powers vested in it by the Ordi-
nance the Government extended its provisions to certain other 
areas including Ratnagiri in respect of buildings intended to be 
used for cinemas and other places of entertainment, by a notifica~ 
tion of the 15th January, 1948. This Ordinance was repealed by 
the Bombay Building (Control on Erection) Act of 1948 the provi-
sions of which were similar to those of tbe earlier Ordinance. 
Section 15(1) of the Act repealed that Ordinance and declared that 
"the provisions of ss. 7 and 25, Bombay General Clauses Act, 
1904, shall apply to the repeal as if that Ordinance were an enact-
ment." 
Held, reversing the judgment of the Bombay High Court, that 
on a true construction of s. 15(1) of the abovesaid Act and s. 25 of 
the Bombay General Clauses Act, 1904, the notification issued on 
the 15th January, 1948, under the Ordinance continued in force 
under t_he Act of 1948 and that by it the provisions of the Act 
stood extended to other areas in the State including Ratnagiri to 
the extent indicated in the notification. 
Ex parte Walton: In re Levy (17 Cb. D. 746) and East End 
Dwelling Co. Ltd. v. Finsbury Borough Cotmcil ([1952] A.G. 109) 
referred to. 
CRUIINAL APPELLATE 
JURISDICTION: 
Criminal 
Appeal No. 62 of 1951. 
Appeal by special leave granted by the Supreme 
Court of India on the 14th May, 1951, from the Judg-
ment and Order dated the 9th August, 1950, of the 
High Court of Judicature at Bombay (Bavdekar and 
Vyas JJ.) in Criminal Appeal No. 319of1950 arising 
ou-t of the Judgment and Order dated the 6th 
Januiuy, 1950, of the Court of the Sub-Divisional 
Magistrate F.C., Ratnagiri City, in Criminal Case 
No. 77 of 1949. 
l~J.53 
ltfarch 13. 
1953 
The State of 
Bo1?Jbay 
v. 
Pandurang 
Vina.yak 
Ghaphalkar 
and Others. 
Mahajan J. 
774 
8UPREME COURT REPoRts 
[1953] 
M. C. Setalvad, Attorney-General fol' India (.G. N. 
Joshi and P. A. Mehta, with him) for the appella,nt. 
K. R. Chaudhury for the respondent. 
1953. March 13. Tha Judgment of the Court was 
delivered by 
MAHA.JAN J.-The respondents were charged with 
having committed an offence punishable under section 
9(2) read with section 4 of the Bomba,y Building 
(Control on Erection) Act, 1948, for commencing the 
work of erection of a cinema theatre without obtain-
ing the necessary permission from the controller of 
buildings, Bombay. 
The sub-divisional magistrate, 
Ratnagiri, held that the Act not having been validly 
extended to Ratnagiri, no permission of the controller 
of buildings was necessuy for the construction. 
He 
accordingly acquitted them. 
On appeal by the State 
Government, the order of acquittal was maintained by 
the High Court. 
This appeal is before us by special 
leave from the concur!ent orders of acquittal. 
Special leave was granted on the Attorney-General 
for India undertaking on behalf of the State Govern-
ment of Bombay that whatever the decision of the 
court might be, no proceedings will be taken against 
the respondents in respect of the subject-matter under 
appeal. 
At the hearing of the appeal it was made 
plain by the learned Attorney-General that no adverse 
consequences will flow to the respondents or to their 
building being completed, by the acquittal order being 
pronounced as bad, and that the State Government 
will not in any way interfere with the respondents 
when they take steps to complete the building, the 
construction of which was commenced without the 
permission of the controller. 
The State Government 
merely wants to have the question of law decided as a 
test case because the decision of the High Court, if 
left unchallenged, would have far-reaching effects. 
The facts giving rise -to the prosecution of the 
res.pondents, shortly stated, are these: There was in 
force in the State of Bombay an Ordinance, Bombay 
S.C.R. 
SUPREME COURT REPORTS 
775 
Buil~ing (Control on Erection) Ordinance, 1948. It 
was applicable to certain areas 

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