TEK CHAND NANDA Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a Writ petition under Art. 32 of the Constitution of India read with para 4h of the Constitution Application to Jammu and Kashmir, Order, 1954 issued by the President under Art. 370 of the Constitution, challenging the validity of S. 3 of the Essential Supplies Temporary Powers Ordinance, 2003 hereinafter to be referred to as the Ordinance and the Notification forming an annexure to Cabinet Order No. 1683 -C of 1955 dated 26 -10 -1955 issued by the State Government under S. 3 of the aforesaid Ordinance banning export of milk from the Jammu province with immediate effect.

(2.) IT is alleged in the petition that the petitioner had entered into a contract with the Military, at Srinagar and Baramulla for supply of milk from 1 -10 -1955, up to the end of March, 1956, and in order to fulfil this contract the applicant was procuring milk from the Jammu province and from the State of Punjab. But the Deputy Commissioner of Jammu, by his order dated 2 -10 -1955, restrained the applicant from exporting milk from the Jammu province. A little later when the applicant put in a Writ petition against this order in the High Court, the Deputy Commissioner withdrew the order and at new order dated 26 -10 -1955 purporting to be under S. 3 of the Essential Supplies Temporary Powers Ordinance, 2003 was issued by the Government prohibiting the export of milk from Jammu province. It is urged that both the Notification and S. 3 of the Ordinance are void & inoperative to the extent that these adversely affect the fundamental right of the applicant to practise any profession, or to carry on any occupation, trade or business guaranteed to him under Art. 191 g of the constitution of India as applied to the State by the Constitution Application to Jammu and Kashmir Order, 1954. It was further urged that the order issued by the Government was mala fide, inter alia, on the grounds that 1 sufficient quantity of milk was available in Jammu province in spite of export by the applicant, 2 the prices of milk in Jammu had not been affected by the export and were not likely to be increased due to export to Kashmir, 3 the demand of the Army in Jammu Cantonment was 125 maunds per day and yet the rates had gone very low as compared with rates of the last year and 4 the milk imported from the Punjab and transported to Kashmir through Jammu was also hit by the Notification. The petitioner, therefore, prays that the aforesaid Notification issued by the Government banning export of milk from the Jammu Province be held ultra vires of the Constitution and a Writ of mandamus may be issued against the State restraining them from giving effect to this Notification and banning the flow of milk into Kashmir. In the objections raised on behalf of the respondent, it was denied that the Notification issued by the Government was mala fide. On the other hand it was averred that S. 3 of the Ordinance and the Notification did not come into conflict with Art. 191 g of the Constitution land that the Notification was issued, as it appeared to the Government necessary for maintaining and increasing supplies of milk in the Jammu province and for securing the availability of the same at a fair price. In another application it was also alleged by the respondent that the rate of milk supplied to the Army in Jammu had gone up to Rs. 40/ - per hundred pounds whereas it was being supplied at Rs. 17/1/3 per hundred pounds before its exports from Jammu to Kashmir and that after getting interim stay order the petitioner himself supplied milk to the Army at enhanced rates of Rs. 30/ - and Rs. 40/ - per hundred pounds.

(3.) THE application was presented in Srinagar before one of us C. J. when notice was issued to the Government and interim stay was granted. Affidavits and counter -affidavits have been filed on behalf of the parties.