PEER HASSAM-UD-DIN Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an application for grant of a writ under Art. 32 (2 -A) of the Constitution of India and S. 103 of the Constitution of Jammu and Kashmir which arises in the following circumstances:

(2.) THE Government of Jammu and Kashmir started a system of rationing of articles of food, particularly rice and shall, from the year 1957 and banned the export and import thereof into the City of Srinagar from the first week of October, 1957.

(3.) MR . Kunzru appearing for the petitioner has seriously argued mainly one point before us. namely, the question as to the validity of the Paddy Movement Control Order 1957 passed by the Government on 7 -10 -1957. It is not, therefore, necessary to go into the various other facts alleged by the petitioner in his petition. Mr. Kunzru has contended that the Paddy Movement Control Order, 1957 is ultra vires. His contention is that sections 2 and 3 of this Order read together ban import and export of paddy in and from any place within the Municipal limits of Srinagar city by any means i. e., whether by land, water or air. This Order has been passed under the powers conferred on the State by S. 3 of the Essential Supplies Temporary Powers Ordinance, 2003. The contention is that under the parent Ordinance, namely, Ordinance No. 1 of 2003 the word export has got only limited meaning which means taking out of the State by land or air only and, therefore, it was not open to the Legislature by virtue of the Order impugned to widen the connotation of the word export so as to even include export or import by water also. In order to appreciate this contention it will be necessary to consider the various provisions of Ordinance No. 1 of 2003. The relevant portion of S. 3 of the Ordinance runs as follows: "S. 3. Powers to control import, export, production, supply, distribution etc., of essential commodities. - 1 The Government, so far as it appears to it to be necessary or expedient for maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, may by notified order provide for regulating, prohibiting, restricting or otherwise controlling the import, export, production, supply and distribution thereof, and trade and commerce therein." It is therefore clear from a perusal of S. 3 that the Government can by notified order pass an order in order to ban export and import of paddy or to regulate its trade. The word export has been defined in the Ordinance as under: " export means taking out of the State or any specified part of the State by land or air" and the word import has been defined thus: " import means bringing into the State or any specified part of the State by land or air. It is thus clear that in the definition of the words export and import the means by which the articles are said to be exported or imported have been confined only to land and air. The contention of Mr. Kunzru is that if by virtue of the order import and export by means of water is also prohibited then certainly the Order will have to be declared invalid to that extent, S. 2 of the impugned Order runs as follows: "2. No person shall import into or export from any place within the Municipal limits of Srinagar City paddy or any of its derivatives except under a permit issued by the Director, Deputy Director or an Assistant Director of the Kashmir Valley Food Control Department." In this section the words exportâ„¢ and importâ„¢ have not been defined at all and since it is an order passed under the authority of the parent Ordinance the words used therein will have to be read according to the definition as given in the parent Ordinance, i. e. Ordinance No. 1 of 2003. So far there can be no question of their being any conflict between the order impugned and the ordinance No. 1 of 2003. Section 3 of the Order runs as follows: "3. A Court trying a contravention of this Order may, in addition to the penalty provided in S. 7 of the Essential Supplies Temporary Powers Ordinance, 2003, direct that the paddy or any of its derivatives in respect of which the Court is satisfied that the order has been contravened and any animal, boat or any other conveyance employed in such contravention shall be forfeited to the State." From a perusal of this section particularly the words boat or any other conveyance it does appear that the intention of the Legislature was to exclude export and import even by water. This the Legislature could not do, because the parent Ordinance itself had limited the means of conveyance by which export or import were to take place to land and air only. It is, therefore, clear to me that to this extent the Order impugned does prima facie go beyond its parent Ordinance.