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M. Fazl Ali, J.—This is an application for grant of a writ under Article 32(2-A) of the Constitution of, India and Section 103 of the
Constitution of Jammu and, Kashmir which arises in the following circumstances:
The Government of Jammu and, Kashmir started a system of rationing of articles of food particularly rice and shali, from the year 1957 and
banned the export and import thereof into the City of Srinagar from the first week of October, 1957.
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
Section 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
Section 3 of the Ordinance runs as follows:
Section 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 Section 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. Section 2 of the impugned Order runs as follows:
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 'export' and 'import' 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:
A Court trying a contravention of this Order may, in addition to the penalty provided in Section 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.
The Advocate-General appearing for the State has, however, drawn our attention to Ordinance No. 1-A of 1957 which was followed by Act
No. X of 1958 published in the Government Gazette dated 1-4-1958 which has amended definitions of 'export' and 'import' as given in Section
2(b) and (e) of Ordinance No. 1 of 2003. In fact Act No. X of 1958 has completely repealed Ordinance No. 1 of 2003 and in the new Act that
has been passed the definitions of 'export' and 'import' include conveyance by water also.
The contention of the Advocate General is that in view of the amended Ordinance as also Act No. X of 1958 the words 'export' and 'import' as
used in the impugned Order must be read as having been defined under Ordinance 1.-A of 1957 and Act No. X of 1958. The contention to my
mind appears to be sound prima facie. As, however, the Ordinance and the Act had been passed after the Order impugned, the question is
whether the provisions of Act No. X of 1958 were intended to be given retrospective effect.
Mr. Kunzru has, however, contended that the Act as also the Ordinance could not be given retrospective effect because there are no clear
words in these statutes which would indicate that they are meant to apply retrospectively. He has further submitted that there is no 'deeming
provision' in the Act which could have shown that the intention of the Legislature was to make the Act retrospective in operation.
We, however, find that Act No. X of 1958 is purely a declaratory statute so far as definition clause is concerned. It is well settled that
declaratory statutes must be presumed to be retrospective unless the contrary intention appears from them. I am fully supported in my view by
what Craies states in his Statute Law, (1952 Edition) at pages 364-365. The observation may be quoted thus:
Where a statute is passed for the purpose of supplying an obvious omission in a former statute or, as Parke J. said in R. v. Dursley (1832) SB and
Ad 465 (A), 'to explain a former statute, the subsequent statute has relation back to the time when the prior Act was passed. Thus in Att. General
v. Pougett (1816) 2 Price 381 (A1), it appears that by 53 Geo. 3, c. 33 a duty was imposed upon hides of. 9s. 4d., but the Act omitted to state
that it was to. be 9s. 4d per cwt., and to remedy, this omission 53 Geo. 3, c. 105 was passed.
Between the passing of these two Act, some hides were exported, and it was contended that they were not liable to pay the duty of 9s. 4d. per
cwt., but Thomson, C.B., in giving judgment for the Attorney-General, said: 'The duty in this instance was in fact imposed by the first Act, but the
gross mistake of the omission of the weight for which the sum expressed was to have been payable occasioned the amendment made by the
subsequent Act, but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the
same Act.
Where an Act is in its nature declaratory, the presumption against construing it retrospectively is inapplicable....
The view that declaratory statutes should be presumed to be retrospective has also been held in a number of cases by various High Courts in India.
In Tabarak Khan Vs. Province of Bihar, , their Lordships while quoting Craies on Statute Law observed as follows:
Where a statute is passed for the purpose of supplying an obvious omission in a former statute or, as Parke J., said in (1832) 3 B and Ad 465 : 1
LJ MC 37 (A), 'to explain a former statute', the subsequent statute has relation back to the time when the prior Act was passed'. Craies also states
that where an Act is in its nature declaratory the presumption against construing it retrospectively is inapplicable. In my opinion, the amending
ordinance should be read as one to which the presumption against construing it retrospectively is inapplicable.
A similar view was taken by a Division Bench of the Orissa High Court in the case reported in Kulamani Hota Vs. Parbati Debi, . A Division
Bench of the Madras High Court while interpreting the provisions of the Hindu Married Women's Right to Separate Residence and Maintenance
Act held that the Act being of a declaratory nature it should be presumed to have a retrospective effect; Musunuru Nagendramma Vs. Musunuru
Ramakotayya, . On a consideration of the authorities, therefore, we find that the present Act being purely declaratory so far as the definition clause
is concerned and the object of the Act being to supply an omission in the definition of the words 'export' and 'import' as contained in Ordinance
No. 1 of 2003, must be presumed to be of retrospective operation.
Against this background I would now proceed to interpret the provisions of Act No. X of 1958. The Act was passed on 31-3-1958 and is
called the Jammu and Kashmir Essential Supplies (Temporary Powers) (Amendment) Act, 1958. Section 2 of the Act runs as follows:
Amendment of Section 2, Ordinance 1 of 2003. -- In Clauses (b) and (e) of Section 2 of the Essential Supplies (Temporary Powers)
Ordinance, 2003 (hereinafter referred to as 'the said Ordinance') for the words 'by land or, air' the words ""by land, water or air' shall be
substituted.
It is, therefore, clear that the object of the section quoted above is clearly to fill up the omission of the word 'water' in the definitions of 'export' and
'import' as contained in Section 2 of Ordinance No. 1 of 2003. Section 3 of the Act runs as under:
Removal of doubts with respect to certain expressions occurring in any notified order issued u/s 3, Ordinance 1 of. 2003. -- For the avoidance
of doubts it is hereby declared that the expressions 'export' and 'import' occurring in any notified order u/s 3 of the said Ordinance shall have the
same meaning as assigned to them in the said Ordinance as amended by this Act.
The Advocate General has contended that the Act has been made specifically retrospective by virtue of Section 3 quoted above. In my opinion the
contention seems to be sound and must prevail. The words 'export' and 'import' having been defined by Section 2 of Act No. X of 1958 left no
ambiguity in cases which would be governed by Acts or Orders passed after the coming into force of the said Act.
If, therefore, the intention of the Legislature was not to make Act No. X of 1958 retrospective we see absolutely no reason why Section 3 should
have been engrafted at all. The words ""it is hereby declared that the expressions 'export' and 'import' occurring in any notified order"" clearly
indicate that the intention of the Legislature was to give retrospective effect to Section 2 of the Act.
It is well settled by authority that whenever a Legislature engrafts a particular section it cannot be read to be a surplusage and the Court must
construe the provisions of the section according to the object of the Act. In my opinion if Section 3 were read to be merely a surplusage then the
very object of the Act in supplying an omission to the provisions of Ordinance No. 1 of 2003 would be defeated.
My view that Section 3 of the Act cannot be read as a surplusage finds support from a Division Bench decision of the Allahabad High Court
reported in Chunnoo and Others Vs. State, , where their Lordships of the Allahabad High Court have observed as follows:
The use of the word 'distinct' is of great significance and the Legislature having inserted it, we must, so far as possible, give it a meaning and not
treat it as redundant.
In that case their Lordships were construing the word 'distinct' appearing in Section 233, Code of Criminal Procedure Code The same view has
been expressed by a Division Bench of the Rajasthan High Court in a case reported in Madan Singh and Others Vs. Collector Sikar, , where their
Lordships observed as under:
It is a well-known principle of law that an Act should be read as a harmonious whole and every attempt should be made to reconcile one part of it
with the other. If the narrow interpretation to the words 'names of members...is given according to the suggestion of the learned Counsel for the
Petitioners Section 16(2) will have no meaning and will be redundant. It is a well known principle of interpretation that no words in a statute will be
considered to be a surplusage unless an absurdity will follow from giving effect to them and that such sense is to be made upon the whole as that no
clause, sentence or word shall prove superfluous, void or insignificant, if any by any other construction they may all be made useful and pertinent.
This view also finds support from Craies on Statute Law (1952 Edition) at page 99.
It is, therefore, manifest that Section 3 of Act No. X of 1958 cannot be held to be redundant or surplusage and the only object for engrafting
Section 3 so far as I can see is to give the Act retrospective (effect?). This circumstance taken with the presumption of retrospectivity which is
usually drawn in statutes of declaratory nature makes it clear that Section 3 of Act No. X of 1958 was intended to,have retrospective operation.
The view which I have taken finds some support from the observations of the Supreme Court in the case Shri Ram Narain Vs. The Simla Banking
and Industrial Co. Limited, , where their Lordships of the Supreme Court have observed as follows:
It is perfectly true as stated therein that whenever an amended Act has to be applied subsequent to the date of the amendment the various
unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. This is for the purpose of
determining what the meaning of any particular provisions of the Act as amended is, whether it is in the unamended part or in the amended part.
Their Lordships relied on a previous decision reported in Shamarao V. Parulekar Vs. The District Magistrate, Thana, Bombay and Others, , for
enunciation of the rule referred to above.
Considering therefore the principles mentioned above four tests have to be kept in mind in order to interpret a statute: (1) what was the law
before the making of the Act; (2) what was the mischief and defect for which it did not provide; (3) what was the intention of the Legislature to
cure the defect of the existing law; and (4) the true reason of the remedy. These tests were laid down by a Division Bench of the Nagpur High
Court in the case Sm. Sodradevi N. Daga v. Commr. of Income Tax, M.P. and Bhopal, Nagpur reported in (S) AIR 1955 Nag 180 (I).
We find that the law before as contained in Section 3 of Ordinance No. 1 of 2003 had a serious lacuna which was sought to be supplied by Act X
of 1958. Applying the tests mentioned above to the facts of the present case the only irresistible inference that we can draw is that the Legislature
intended that Section 3 of Act No. X of 1958 should be applied retrospectively. It is, therefore, clear that if Section 3 is given a retrospective
effect then the words 'export' and 'import' as used in the Paddy Movement Control Order of 1957 must be read not in the light of the definitions as
given in Section 2 of Ordinance No. 1 of 2003 but in the light of the definitions as given in Section 2 of Act No. X of 1958.
In this view of the matter we are unable to hold that the Paddy Movement Control Order, 1957 is ultra vires. We must, therefore, hold that the
said Order is intra vires. We accordingly overrule the argument of Mr. Kunzru on this point.
As I have already mentioned that before Act No. X of 1958 there was Ordinance being Ordinance No. 1-A of 1957 published in the Jammu
and Kashmir Government Gazette on 13-11-1957 which contained exactly the same provisions as Act No. X of 1958. Section 3 of the
Ordinance runs thus:
For the avoidance of doubt, it is hereby declared that the expressions 'export' and 'import' occurring in any notified Order u/s 3 of the said
Ordinance shall have the same meaning as is assigned to them in the said Ordinance as amended by this Ordinance.
It will appear from a perusal of this section that this section is exactly the same as Section 3 of Act No. X of 1958. For the reasons that I have
already given above Section 3 of the Ordinance also must be held to be of retrospective operation. Moreover, from the words 'any notified Order'
in Section 3 it will be reasonable to infer that the Legislature was aware of the Paddy Movement Control Order, 1957 and it was for the purpose
of curing the lacuna that Ordinance No. 1-A of 1957 as also Act No. X of 1958 were passed.
Mr. Nehru who followed Mr. Kunzru, however, submitted that both Ordinance No. 1-A of 1957 as also Act No. X of 1958 were hit by the
proviso to Article 304 of the Constitution of India. The proviso to Article 304 reads thus:
Provided that no Bill or amendment for the purposes of Clause (b) shall be introduced or moved in the Legislature of a State without the previous
sanction of the President.
Mr. Nehru contended that sanction of the President had not been taken both before the passing of the Ordinance as also the Act, and hence both
these statutes were invalid. In my opinion it is true that the provisions of Section 304 are mandatory and non-compliance with the proviso would
invalidate a statute so passed. But a complete answer to the contention of Mr. Nehru is furnished by the fact that Article 305 of the Constitution of
India was amended by the Constitution (Fourth Amendment) Act, 1955 and it is the said amendment which has been applied to the State of
Jammu and Kashmir by the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1958.
The Advocate-General argued that in view of the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1958 all existing
laws were saved as also future laws. Mr. Nehru, however, contended that by virtue of this amendment Order only the laws previous to 1955 were
saved and not laws subsequent to that Order. In order to appreciate this contention it is necessary for me to analyse the effect and purport of the
Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1958.
Immediately prior to the passing of this statute the provisions of the Constitution of India were applied to this State under the Constitution
(Application to Jammu and Kashmir) Order, 1954; Paragraph 1(2) of that Order reads as follows:
It shall come into force on the fourteenth day of May, 1954, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir)
Order, 1950.
By virtue of Paragraph 2(i) of the Second Amendment Order, 1958 referred to above the Order of 1954 has been amended thus: After the words
'the Constitution' as mentioned in paragraph 2(2) of the Order of 1954 the following words, letters and figures have to be inserted namely, ""as in
force on 15-2-1958."" In other words, by virtue of the Constitution (Application to Jammu and Kashmir) Second Amendment Order, 1958 the
Constitution of India that would be applicable to the State must be the Constitution that was in force not on 14-5-1954 but on 15-2-1958.
In the light of the second Amendment Order we have now to construe the provisions of Article 305 of the Constitution of India which run as
follows:
Nothing in Articles 301 and 303 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct; and
nothing in Article 301 shall affect the operation of any law made before the commencement of the Constitution (Fourth Amendment) Act, 1955 in
so far as it relates to, or prevent Parliament or the Legislature of a State from making any law relating to any such matter as is referred to in Sub-
clause (ii) of Clause (6) of Article 19.
It is, therefore, clear that the words 'shall affect the provisions of any existing law' would not include any existing law before 15-2-1958. It has not
been disputed before us that Ordinance No. 1-A of 1957 is not an existing law within the meaning of Article 305 referred to above. Moreover, the
words 'existing law' have been defined in Article 360(1) of the Constitution of India to include even an Ordinance.
Under Article 372 of the Constitution of India all the laws in force in the territory of India immediately before the commencement of the
Constitution shall continue in force. As the commencement of the Constitution has been deemed to be on 15-2-1958 it follows automatically that
Ordinance No. 1-A of 1957 is an 'existing law' within the meaning of Article 305 and is, therefore, saved from the restriction laid down by the
proviso to Article 304.
I might here mention that a similar argument was advanced before the Supreme Court in the case Ram Chandra Palai and Others Vs. The State of
Orissa and Others, , while challenging the Orissa Motor Vehicles (Regulation of Stage Carriage and Public Carrier's Services) Act. Their
Lordships of the Supreme Court while dealing with the contention regarding the interpretation of Article 305 observed (sic) follows:
Nor need we pause to consider the last contention urged on behalf of the Petitioners that the impugned Acts violated the guarantee of freedom of
inter-State and intra-state trade or business embodied in Article 301 of the Constitution. In the first instance, it is not a fundamental right conferred
by Part III of the Constitution which can be enforced by a petition under Article 32. Moreover, Article 305 as it stood before the amendment 'and
the amended Article 305 which came into effect after the Constitution (Fourth Amendment) Act, 1955, afford a complete answer to this contention
of the Petitioners'.
My view, therefore, finds some support from the decision of the Supreme Court quoted above. In view of the reasons given above we are unable
to agree with Mr. Nehru that Ordinance No. 1-A of 1957 is hit by Article 304 of the Constitution of India.
As regards Act No. X of 1958 the position does not seem to me to be free from difficulty. The Advocate General has submitted that by virtue
of the amended provisions which I have already found apply to this State, even future laws have been saved from the mischief of the proviso to
Article 304 of the Constitution of India. The Advocate-General relied on a passage from Basu's Shorter Constitution of India where the author in
his commentary on Article 305 states as follows:
Future laws made by the State relating to the same matter are also saved from the operation of Articles 301 and 303.
The contention of the Advocate-General is that the words 'prevent Parliament or the Legislature of a State from making any law relating to any
such matter as is referred to in Sub-clause (ii) of Clause (6) of Article 19' clearly indicate that even future laws are saved. In my opinion, however,
it is not necessary to go into this vexed question because even if Act No. X of 1958 is invalid at least Ordinance No. 1-A of 1957 is no doubt
saved because if Act No. X of 1958 is invalid then the Ordinance aforesaid which was repealed by the said Act would retrospectively apply at
least at the time when the impugned order was passed.
Having regard to my finding that Section 3 of the said Ordinance is retrospective the Paddy Movement Control Order, 1957 cannot be held to be
invalid.
As regards the other contention of the Petitioners that the system of rationing having been established by an executive order it is invalid, it is not
necessary for us to go into this question because the Advocate General has given an undertaking that the Petitioners who have got ration cards will
be given further facilities regarding their rations. A similar assurance is to be found in the objections filed by the Advocate General.
In view of this assurance the learned Counsel for the Petitioners has not pressed this point before us and it is not necessary for us to decide it in this
case.
For the reasons given above no case for interference has been made out and the application is accordingly dismissed, but in the peculiar
circumstances of the case there will be no order as to costs.
J.N. Wazir, C.J.
I agree.