RATTAN LAL Vs. STATE

JUDGEMENT

(1.) THE petitioner was prosecuted under Section 3/7 of the Essential Supplies (Temporary Powers) Ordinance, 2003 before the Sub -Registrar, Magistrate, Jammu. An objection was raised on behalf of the petitioner before the learned Sub -Registrar that the prosecution was not maintainable. The Sub -Registrar -Magistrate rejected this contention of the petitioner on 11.7.1967 against which a revision petition was preferred before the learned Sessions Judge, Jammu, who also by means of his order dated 17th January 1968, rejected the revision petition, A further revision has been presented in this Court against the order of the two Courts below.

(2.) WE have heard the learned counsel for the petitioner as well as the Additional Advocate -General.

(3.) WE shall examine these arguments separately. The Essential Supplies (Temporary Powers) Ordinance, 2003, was promulgated by His Highness under Section 5 of the Jammu and Kashmir Constitution Act, 1996 No. 14 of 1996), and came into force the 15th day of Assuj 2003. The Preamble of this Ordinance says: Whereas an emergency has arisen which makes it necessary to provide for the continuance during a limited period of powers of control, the import, export, production, supply and distribution of,.... Now, therefore, in exercise of the powers reserved under Section 5 of the Jammu and Kashmir Constitution Act, 1996, His Highness is pleased to make and issue the following Ordinance. The emphasis of the argument of Mr. Grover is that admittedly this Ordinance was enforced or promulgated for a 'limited period', the limited period began from 15th Assuj 2003, which is equivalent to 1946 A.D. At the worst, the Ordinance could be held to be alive during the war or in the words of Jammu and Kashmir Defence Act, 1996, for six months after the war. The war came to an end in the year 1946 and therefore any prosecution under this Ordinance in the year 1966 would be meaningless because the Ordinance would have had spent its force. The introduction of Jammu and Defence Act, 1996, or Defence Rules in this argument is not at all warranted or called for. The prosecution is not launched under the Defence of Jammu and Kashmir Act or the Defence Rules of the State. This is a separate piece of legislation in the shape of an Ordinance promulgated by the erstwhile Ruler. While discussing this aspect of the case, the argument of Mr. Inderdass Grover was that under Section 38 of the Jammu and Kashmir State Constitution Act of 1996, the life of an Ordinance would be only six months from the date of its promulgation. Therefore, he argued, this Ordinance was no longer law; but the learned counsel's argument fails to see the force of an Ordinance issued by His Highness Under Section 5 of the J. & K. Constitution Act of 1996 and issued under Section 38 of the same under Section 5 of the Jammu and Kashmir Constitution Act 'all powers, legislative, executive and judicial, in relation to the State and its government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and issue proclamations, orders and ordinances by virtue of his inherent authority'. If His Highness issued any ordinance, it had the force of law as if it had been passed by the Legislature of the State and no Court or authority could question its legality or validity. The Ordinance contemplated under Section 38 lays down that the Council may, in case of emergency or where immediate legislation is required in any matter affecting the peace and good government of the State submit to His Highness an Ordinance and such Ordinance on being assented to by His Highness shall have the force of law for a period not exceeding six months from the date of its promulgation. The plain reading of this section would make it clear that an ordinance issued under that section would be issued (1) on the recommendation of the Council; (2) when immediate legislation was required; (3) it must be pertaining to the peace and good government of the State; (4) after receiving the assent of His Highness it would be law for six months. But the Essential Supplies (Temporary Powers) Ordinance, 2003, was promulgated by His Highness under his inherent authority as contained in Section 5 and therefore it had the force of law, unless repealed by any competent authority which would be either His Highness himself or the State Legislature under the new Constitution of the State.