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Judgment
(1) This petition under Article 32 (2A) of the Constitution of India as applied to the State of Jammu and Kashmir and Section 103 of the
Constitution of Jammu and Kashmir, seeks issuance of a writ of mandamus or other appropriate writ enjoining the respondents to forebear from
putting obstacles in the way of the petitioner's importing wheat into the city of Jammu, or taking it any where within Zone No. 1 as fixed under
clause 2 (g) of the laterZonal wheat and wheat products (Movement Control) order. 1969 made by the. Central Government on the 16th April,
1969, under Section 3 of the Essential Commodities Act, 1955, hereinafter referred to as the Inter Zonal order.
(2) The petitioner has interalia alleged that he is a farmer belonging to village Gol, Tehsil, Jammu, that he grows wheat on his land, that he wanted
to bring his surplus wheat i. e wheat exceeding his personal needs into the city of Jammu with a view to disposing it of in the open market in the
city, that on his arrival along with the said commodity at the Octroi Check Post, Talab Tillo jammu he was prevented from proceedings towards
the city by the personnel manning the post with the result that he had to take back the said wheat to his village, that on questioning the personnel he
was informed that the import into and export from the city of Jammu of wheat had been banned by the respondents, that the respondents have no
authority to impose restrictions on the import of wheat into the city of Jammu. that the Essential Supplies (Temporary Powers) Ordinance, 2003,
hereinafter referred to as 'the Ordinance' under which S. R. O. No. 218 dated 3rd June, 1967 imposing restrictions on the import into and export
from the city of Jammu of the commodity had been issued, was repealed with the coming into force of the Central Laws (Extension to Jammu and
Kashmir Act.) 1968 (Act 25 of 968) by virtue of which the Essential Commodities Act 1955, (Act No. JO of 1955) was interalia made applicable
to the State of Jammu and Kashmir, that clause 3 of that Inter Zonal Order which extends to the whole of India, merely prohibits the export or
attempt to export or abetment of the wheat without permit from any place within a Zone to any place outside the Zone, that the petitioner cannot
be restrained from moving or taking the wheat from one place to another within the area comprised in the first Zone as specified in the Schedule
annexed to the Inter Zonal order, that has a result of the illegal acts of the respondents, the petitioner is forced to sell the wheat at Rs 65/ per
quintal whereas the price per quintal of the commodity has been fixed by the Central Government at Rs. 76.75 and that the whole procedure
adopted by the respondents was illegal and unwarranted.
(3) The petition has been resisted by the respondents averring interalia, that the petitioner has no fundamental or other right to bring wheat into the
city of Jammu, that the respondents have knowledge about the needs of the petitioner or about his desire to bring excess wheat into the city of
Jammu that by virtue of Government order S. R. O. No. 218 dated 3rd June, 1967, the import of wheat or its products into the city of Jammu
(which is a rationed area) was prohibited, that food rationing in the cities of the State is a part of all India Scheme as the country as a whole is
deficit in wheat, that to feed the people residing in Jammu city food rationing had been introduced as an equitable step for the distribution of food
staff, that the import of wheat or its products into the city would upset the rationing scheme and defeat the very purpose for which it had been
introduced into and was carried on in the city and would also adversely affect the supply of wheat to other deficit areas in the Stare, that the
respondents had, therefore, issued orders to ensure compliance with the said S. R. O No. 218 dared 3rd June, 1967. that in the. matter of
production of wheat the State of Jammu and Kashmir continues to be a deficit area, that all orders instructions, byelaws schemes or notifications
made or issued by the State Government under the ordinance have been saved even by the General Laws (Extension to Jammu and Kashmir).
Act. 1968. by virtue of which the Essential Commodities Act, 1955 has interalia been extended to the State, that InterZonal Order did not modify
repeal, supersede or in any way restrict the application of S. R. O. No. 218 dated 3rd June. 1967, which continued to be valid and enforceable
law, that keeping in view the facts that the Jammu and Kashmir State, is deficit in wheat and the Jammu and Kashmir has to supply wheat at
subsidered cheap rates to the persons residing in rationed areas in the State, the Sate Government had fixed the procurement price of wheat at Rs
65/ per quintal, the respondent No. 1 was willing to purchase wheat at the said rate from the petitioner and that the petition was misconceived and
the petitioner was not entitled to any relief.
(4) Mr. Sehgal appearing on behalf of the petitioner has urged that after coming into force of the Essential Commodities Act, 1955, as a result of
the Central Laws (Extension to Jammu and Kashmir) Act, 1968, only the Central Government could pass orders restricting the movement of
essential commodities, that the Central Government had decided the whole of India into Zones by means of interzonal order which did not prohibit
the import of wheat or wheat products from one area of the state to another, that S. R. O. No. 218 dated 3rd June. 1967 relied upon by the
respondents stood repealed by virtue of Section 5 of the Central Laws (Extension to Jammu and Kashmir) Act, 1968 and superseded and
abrogated by clause 8 of the Inter Zonal order which had an over riding effect, that the Central Government had merely delegated to the State
Government its power under Section 3 ofthe Essential Commodities Act, 1955 (Act No X of 1055) in respect of the movement of paddy & rice
and that as there is no express saving in favour of S. R. O. No. 218 dated 3rd June. 19d7 it cannot be deemed to be in force.
(5) Mr. Amar Chand, the learned Additional Advocate General, has tried to counter Mr. Sehgal's contentions by submitting that despite the
extension of the Essential Commodities Act. 1355 by virtue of Section 2 of the Central laws (Extension to Jammu and Kashmir) Act, 1968 the
notification S. R. O. No. 218 dated 3rd June 1967 has been saved and continues to be validly in force in the State.
(6) I have carefully gone through the law bearing on the matter and am of opinion that the contentions of Mr. Sehgal are not sound and can not be
allowed to prevail.
(7) There is no doubt that by virtue of Central Laws (Extension to Jammu and Kashmir) Act, 1963 (Act No. 25 of 1968) which received the
assent of the President on 24th May 1968 and came into force on 15th August, 1968 by virtue of Ministry of Home Affairs Notification G. S. R.
1482 dated 2nd July, 1968 the Essential Commodities Act, 1955 (Act No. 10 of 1955) and the rules and regulations made thereunder have been
extended to the State of Jammu and Kashmir's but the crucial point for determination is whether after the extension of the Essential Commodities
Act, 1955, S R O. No. 218 dated 3rd June, 1967 stands repealed or continues to be in force The answer to this question is clearly furnished by
Section 5 of the Central Laws (Extension to Jammu and Kashmir) Act, 1968, which runs thus :
If immediately before the commencement of this Act there is inforce in the State of Jammu and Kashmir any law corresponding to any Act now
extended to that State, that law shall, save as otherwise expressly^ provided in this Act, stand repealed on such commencement, provided that the
repeal shall not effect :
(a) The previous operation of any law so repealed or anything duly done or suffered thereunder.
(b) Any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed.
(c) Any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed, or
(d) Any investigation, legal proceeding or remedy in respect of any such privilege, obligation, liability, penalty, forfeature or punishment as aforesaid
and any such investigation, legal proceeding or remedy may be instituted continued or enforced and any such penalty, forfeature or punishment may
be imposed, as if this Act had not been passed.
Provided further that, subject to the preceding proviso, any ting done or any action taken (including any appointment or delegation made,
notification, instruction or direction issued, from, byelaw or scheme framed, certificate obtained, permit or licence granted or registration effected)
under any such law shall be deemed to have been done or taken under the corresponding provisions of the Act now extended to the State and
shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the said Act.
(8) Now the two provisos to the above Section are very important for the purpose of this petition and need a close and careful scrutiny. The first
proviso clearly saves ""anything duly done"" under the law corresponding to Essential Commodities Act. 1955 i. e. anything duly done under the
Essential Supplies (Temporary powers) Ordinance, 2003, which was in force in the Stare before the Commencement of the Central Laws
(Extension to Jammu and Kashmir) Act, 1968. The word ""anything duly done"" have acquired a well settled meaning. While interpreting these
words in Hasan Nurani Malak V. S M. Ismail Assistant Charity Commissioner Nagpur and others AIR 1967 Supreme Court, 1742, their
Lordships of the Supreme Court observed :
The words ""anything duly done"" in subcl. (a) are very often used by the legislature in saving clauses such as we have in S. 86 (3) of the Bombay
Public Trust Act (29 of 1950) Section 6 of the General Clauses Act 1897 also provides that unless a different intention appears the repeal of an
Act would not affect anything duly done or suffered thereunder. The object of such a saving clause is to save what has been previously done under
the statute repealed. The result of such a saving clause is that the preexisting law continues to govern the thing done before a particular date from
which the repeal of such a preexisting law takes effect. In Universal Imports Agency V. Chief Controller of Imports and Exports, 1C611 SCR 305
(AIR 1961 SC 41), construing the words ''things done'1 used in para 6 of the French Establishments (Application of Laws) Order 1954 this court
held that on a proper interpretation the expression 'things done"" was comprehensive enough to take in not only the things done but also the effect of
the legal consequences following therefrom
(9) As the impugned notification appears to have been duly issued under Section 3 of the Ordinance, it validly continues to be in force despite the
application of the Essential Commodities Act, 1965 to the State .of Jammu and Kashmir.
(10) That apart, under the Second proviso to the aforesaid Section any notification etc issued under corresponding law which has been repealed is
to bf deemed to have been issued under the corresponding provisions of the Act, i. e. the Essential commodities Act, 1955. now extended to the
State and has to continue in force unless and until superseded by anything done or any action taken under the said Act. A cursory perusal of the
impugned notification would show that it was issued under Section 3 of the Essential Supplies (Temporary Powers) Ordinance 200'. It has,
therefore, been clearly saved and has to be deemed to be validly in force in the State.
(11) The contention of the learned counsel for the petitioner that the impugned notification is inconsistent with the interzonal order and cannot,
therefore, be deemed to have been saved has also no substance. Repugnancy between two pieces legislation can as held by the Supreme Court in
Deep Chand and ors Vs. The State of Uttar Pradesh and others AIR 1959, S. C. 648, arise only :
(1) When there is direct conflict between the two provisions
(2) When the Parliament intends to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature and
(3) When the law made by the Parliament and the Law made by the State Legislature occupy the same field.
(12) Examining the provisions of the interzonal order and the language of the impugned notification in the light of the above principles enunciated by
their Lordships of the Supreme Court, I find that there in no direct conflict between the two, that the interzonal order does not lay down an
exhaustive code in respect of movement of wheat or wheat products, that there is no provision in the Interzonal order which may be said to deal in
any way with the movement of wheat within the territories of the State although it is comprised in Zone No. 1 of the Schedule annexed to that
order. It merely deals with :
(1) Export 0 and Import 00 of wheat and wheat products.
(2) Movement of wheat or wheat products to or within Zonal Border Area. 000
(3) Movement of Wheat or wheat products to or within the External Border Area 0000
(13) It does not touch any other subject and does not at all, as stated above, deal with the movement of wheat or wheat products within the
territory of Jammu and Kashmir, and does not say that their movement within the State shall be free.
(14) I am therefore, unable to find any inconsistency or repugnancy between the Interzonal order and the impugned notification. The contention of
Mr. Sehgal in this behalf is accordingly repelled.
(15) For the reasons mentioned, I find no merit in this petition which he dismissed but in the circumstances of case without any order as to costs.
Sd/ Judge
0 Export as defined in clause 2 (a) of the Interzonal. Wheat and Wheat Products (Movement Control) Order, 1969 means to take or cause to be
taken by any means whatsoever, out of any place outside it.
00 Import means to take or cause to be taken by any means whatsoever into any place within a Zone from a place outside it.
000 Zonal Border area means the area within a five mile belt inside a Zone all along its border whether adjoining (i) Another Zone, or (ii) in the
case of the State Uttar Pradesh, the territory of Nepal.
0000 External border area means the area within a ten mile belt all along the border lying within, (i) The State of Punjab, Rajasthan, or Gujarat
adjoining the territory of West Pakistan, or
(ii) The State of West Bengal or Assam or the Union of Territory of Tripura adjoining the territory of East Pakistan.