Badal Choudhury vs State of Tripura

Deepak Gupta, C.J.�The following interesting question has been raised in this petition-whether laws which were applicable to the Union Territory of Tripura prior to its formation as a State on 21st January, 1972 automatically continue to apply in the newly formed State of Tripura or some special order in this behalf is required to be passed? The State of Tripura was formed in terms of the North-Eastern Areas (Reorganisation) Act, 1971 (for short, the Act). Prior to its being of 2005 established as a State, Tripura was a Union Territory. Reference may be made to Sections 77, 79, 80 and 81 of the Act which reads as follows:

"77. Territorial extent of laws.

The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and the territorial references in any such law to the existing State of Assam or the autonomous State of Meghalaya or the Union territory of Manipur or the Union territory of Tripura or the North-East frontier Agency shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State or autonomous State or Union territory or Agency immediately before the appointed day.

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Power to adapt laws.

For the purpose of facilitating the application of any law in relation to any of the States of Union territories formed or established by the provisions of Part II, the appropriate Government may, before the expiration of two years from the appointed day, by order, make such, adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shah have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.

Explanation.--In this section, the expression" the appropriate Government" means--

(a) as respects any law relating to a matter enumerated in the Union List in the Seventh Schedule to the Constitution, the Central Government; and

(b) as respects any other law,--

(i) in its application to a State, the State Government, and

(ii) in its application to a Union territory, the Central Government

Power to construe laws.

(1) Notwithstanding that no provision or insufficient provision has been made under section 79 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 its application in relation to the State of Assam, Manipur, Meghalaya or Tripura or to the Union territory of Mizoram or Arunachal Pradesh 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.

(2) Any reference to the High Court of Assam or the High Court of Assam and Nagaland or to the Court of the Judicial Commissioner for Manipur or the Court of the Judicial Commissioner for Tripura in any law shall, unless the context otherwise requires, be construed, on and from the appointed day, as a reference to the common High Court.

Power to name authorities, etc., for exercising statutory functions.

The Central Government, as respects the Union territory of Mizoram or Arunachal Pradesh and the State Government as respects any new State established or formed by the provisions of Part II may, by notification in the Official Gazette, specify the authority, officer or person who, as from the appointed day, shall be competent to exercise such functions exercisable under any law in force on that day as may be mentioned in that notification and such law shall have effect accordingly."

It may be pertinent to mention that these sections are almost identical to Sections 119, 120, 121 and 122 of the States Reorganization Act, 1956.

As far as Section 77 of the Act is concerned it provides that notwithstanding the establishment of newly constituted State, the law which was applicable to a territory prior to the constitution of the State will continue to apply in the newly established State. As far as Tripura is concerned, no territories was deleted or added to the Union Territory of Tripura when the new State of Tripura was constituted. The entire Union Territory of Tripura was- established as the State of Tripura- Therefore, reading of Section 77 of the Act establishes that the law which was in applicable to the Union Territory of Tripura shall be construed as meaning territory of Tripura and, therefore, shall continue to apply in the State of Tripura.

On behalf of the petitioner, it was contended by Mr. Somik Deb that the State in terms of Section 79 of the Act must issue an order adapting the laws and unless such order of adaptation is passed, the old laws would only apply for a period of 2(two) years and thereafter they would cease to apply. At first blush, this argument is attractive but on a closer examination of Section 79 of the Act it is found to be without force. As rightly contended by Sri B.C. Das, learned Advocate General, Section 79 contemplates a situation where the Executive can within a period of two years from the establishment of the State make such adaptation and modifications to the existing law which it feels necessary or expedient so to do. The Parliament in it''s wisdom decided that since new States were being constituted, these States might have their own particular problems and the executive should be given the right of legislation for a period of two years. Normally the legislative right vests in the legislature except the power of issue of ordinances. However, by Section 79 of the Act the Executive has been given the power to make adaption and modification in the law for a period of two years.

As far as Section 80 is concerned that only applies to Courts and other judicial authorities. Therefore, even if an adaptation order is not passed in terms of Section 79 if in any law reference was made to any Court, Tribunal or authority which was empowered to enforce such law, the corresponding authority in the newly established State would be deemed to have the power to enforce such laws. Therefore, even without an adaptation or modification having been made in the law, the Court in the newly established State which earlier had power to decide under the law would continue to have the power to do so.

Reference may be made to a few judgments of the Apex Court. In M. Ramappa Vs. Government of Andhra Pradesh and Another, the writ petitioner who was employed by Hyderabad Revenue Service was dismissed by the Government of Andhra Pradesh. This dismissal order was issued on the basis of a recommendation issued by the Tribunal constituted under the Hyderabad Public Servants (Tribunal of Enquiry) Act, 1950 (for short, the Hyderabad Act). This Tribunal had been constituted prior to the States Reorganisation Act of 1956. The contention before the Court was that one of the members of the Tribunal did not hold the rank of Sessions Judge for a period of three years and was therefore, not qualified to be a member. However, this member was duly qualified under the Andhra Civil Services (Disciplinary Tribunal) Rules, 1953 which were in force in the State of Andhra Pradesh before its merger with the Hyderabad State under the States Reorganisation Act The contention of the petitioner was that the Hyderabad Act could not be deviated without an order of adaptation being passed in terms of Section 120 of the States Reorganisation Act which correspondences to Section 79 of the Act.

This contention was repelled by the Apex Court in the following terms:

"7. The argument of Mr. Vishwanath Sastri that before the Hyderabad Act could be departed from, it had to be adapted under S. 120 by substituting an authority different from that named in S. 3 therefore might have been effective if S. 122 had not concluded in the manner indicated above. Section 122 by its very terms makes the Hyderabad Act speak in accordance with a notification issued under S. 122. That Act after the notification applies in accordance with the notification and pro tanto is adapted by the Notification. In our opinion adaptation of the Hyderabad Act under S. 120 was not a condition precedent to the issuance of the Notification and the Notification having issued the Hyderabad Act applied accordingly and the appointment of Mr. Sriramamurthy was therefore valid. We agree with the High Court in its conclusion. The appeal fails and is dismissed with costs."

It is thus clear that the Apex Court held that even if no order of adaptation had been passed the Act would continue to apply, in the newly established State.

Reference may also be made to the judgment of the Division Bench of the Kerala High Court in District Registrar and Another Vs. Popular Automobiles Trichur, wherein dealing with a similar question, the Kerala High Court held as follows:

"11. ***** We think that Sec. 121 of the States Reorganisation Act, 1956 is meant exactly to cover circumstances such as the one that has arisen in this case. There is no point in enacting Sec. 119 of the States Reorganisation Act, 1956 and keeping in force the Madras General Clauses Act if the effect or that would be to make Section 18 of the Act non-available in regard to any statute passed by the Kerala Legislature after the appointed day. This is a matter in regard to which provisions could easily have been made under Sec. 120 by altering the words or the meaning of the words ''the Act'' in that Section. If inadequate provision has been made in that regard under that section and even if no provision has been made in that section, this Court has been given the power to construe Section 18 of the Madras General Clauses Act with a View to facilitate its application in relation to any State formed or territory altered by the provisions of Part II Kerala State is a State constituted under that Part cannot be doubted and in order to give effect to the provisions of Sec. 121, we cannot but read ''the Act'' in Sec. 18 of the Madras General Clauses Act to include the Act in question. Viz., the Kerala Panchayats Act, 1960. We propose to read the section in this manner.

Our attention has been drawn to the decisions of the Andhra Pradesh High Court to the effect that if no adaptation has been made under Sec. 120 of the States Reorganisation Act, 1956, the provisions under Sec. 121 of the Act cannot be relied on for the purpose of making such adaptations as could have been made under Sec. 120. The ruling is in Bh. Satyanarayanamurti Vs. Income Tax Appellate Tribunal Madras Bench--> . With great respect we are unable to agree with this view for it seems to us that such a view would defeat the very purpose for which S.121 of the States Reorganisation Act has been enacted and such a conclusion cannot be supported on the wording of Sec. 121."

In my view if we read Sections 77, 79, 80 and 81 of the Act together, it is absolutely clear that a law which was applicable to the Union Territory of Tripura prior to the establishment of the State will continue to apply to the State of Tripura. In case the State wants to make any modification or adaptation of the law to suit its particular circumstances for a period of two years from the date of establishment in terms of Section 79 of the Act, the Executive was empowered to pass such orders adapting or modifying the laws. Thereafter it is only the legislature which can adapt or modify the law. The Courts, Tribunals or other authorities having power to decide under a particular law prior to the establishment of the State will continue to have this power of deciding even if no order of adaptation was made. Therefore, I am clearly of the view that the Sugar Control order No. F. 12(10)-FSD/71 which was issued on 10th August, 1971 shall continue to apply in the State of Tripura till suitably modified, adapted or amended by the State.

In terms of the aforesaid sugar control order, no person can be on possession of more than 50 kg of sugar. As far as the present case is concerned, the prosecution case is that on 02.07.1997 on the basis of some secrete information received by the Officer-in-charge of Enforcement Branch of the police, the said. Officer along with Other police officials laid an ambush near the A.D. Nagar drop gate at about 7.30 p.m. and one truck bearing No. TRL 2206 was found proceeding towards Bishalgarh from Agartala at a high speed. This vehicle was intercepted and on checking 105 bags of sugar were found in the track. Each bag contained approximately 100 kg of sugar. The petitioner, Badal Choudhury, was driving the truck and one Bindu Chandra Roy was also travelling in the truck.

The driver failed to produce any licence or permit or even a cash memo to show from where the sugar had been purchased and where it was being taken. The sugar was seized, the vehicle was also seized and taken to the Branch Office. The accused was charged with having violated the Tripura Sugar Dealer Licensing Order, 1971 and of having violated Section 7(1)(a)(ii) of the Essential Commodities Act, 1956. After trial the learned trial Court convicted the accused and the conviction has been upheld by the appellate Court.

Sri Somik Deb, learned counsel appearing for the petitioner has argued that no independent witnesses was associated or examined and he has also submitted that the seizure of the sugar has not been properly proved.

P.W.8, S.I. Satya Prakash Choudhury, is the person who received the secret information and conducted the entire search and seizure operation. He has fully supported the prosecution case and according to him, the driver gave no explanation as to how he was carrying such a huge quantity of sugar in the truck. The driver was arrested at the spot. Thereafter the vehicle along with the sugar were taken to the Enforcement Branch Office complex at Agartala. The statement of P.W.-5, S.I Nani Gopal Debbarma and P.W.6., S.I. Jiban Chakraborty is similar and supports the version of P.W.8. They fully corroborated the main witness.

The owner of the vehicle appeared as P.W.1, he has stated that Badal Choudhury was his driver and he has admitted that the truck was detained by the police when it was carrying sugar. P.W.-3, Ashok Roy Choudhury was the Officer-in-Charge of the Agartala Rationing authority and he disposed of the 105 bags of sugar. P.W.4, Bindhu Ch. Roy is the other person travelling in the truck. According to him, he was going to Bishalgarh from Battala in a Jeep. This jeep developed disorder and he then started walking and in the meantime, the police stopped him and made him signed the blank document. This is the only piece of evidence which can be relied upon by the petitioner. The recovery of 105 bags of sugar is proved. As many as 105 bags of sugar cannot be planted by the police. The owner of the truck has admitted that the petitioner was a driver and the truck was carrying sugar. It is true that the prosecution did not produce the other witness to the seizure but keeping in view the nature and quantity of the seizure it cannot be disputed that the sugar was seized.

True it is that Bindhu Ch. Roy has not supported the prosecution. But even from his evidence, two things stand proved that truck bearing registration No. TRL 2206 was standing near the A.D. Nagar drop gate and secondly he has admitted his signature on the seizure list This witness is a Govt. employee and it cannot be believed that he would have signed on blank papers. In any event in revisional proceedings this Court does not normally interfere with findings of fact and therefore, I find no reason to interfere with the impugned judgment and order. There is no merit in the petition and the same is accordingly dismissed.

Send down the LCRs forthwith.