Dr. Anand, J.
1. Petitioner, a Halwai by profession, aggrieved by the notification dated 10-10-1978, issued by the 1st respondent under Clause 3 (1) (c) of the J. and K. Hoarding and Profiteering Ordinance, 2000 (hereinafter referred to as 'the Ordinance') fixing the sale price of some sweetmeats, has challenged the vires of the said Ordinance, inter alia, on the grounds; (1) that the 'emergency' which had necessitated its promulgation in the year 1943, having come to an end by the cessation of World War-II in 1946, the Ordinance does not survive, (2) that the failure of the Government to pass an order under Sub-clause (4) of Clause 1 of the Ordinance cannot by itself exr tend the life of the Ordinance beyond the period of the said 'emergency'; (3) that the Ordinance has lapsed after the enforcement of the Jammu and Kashmir Constitution. 1956 which expressly repealed the Constitution of 1996, under Section 5 of which, the Ordinance was issued in Samvat 2000; and (4) that the Essential Commodities Act 1955 (for brevity, 'the Act'), having been extended to the State by virtue of Central Laws (Extension to Jammu and Kashmir) Act No. 25, 1968 the Ordinance stands repealed by force of Section 16 of the Act. That apart, validity of Clause 3 of the Ordinance is challenged on the ground that it suffers from the vice of excessive delegation and is ultra vires the Constitution for want of necessary guidelines and confers arbitrary powers on the Controller General to fix the prices of various commodities.
2. The petitioner's further grievance is that the 1st respondent, purporting to act under Clause 3 (1) (c) of the Ordinance fixed the prices without addressing himself to the price index of various components which are used in preparation of those articles and the prices fixed bear no relation to the cost of production and normal market rates of various components. That this arbitrary fixation of prices has caused great loss to the petitioner thereby infringing his fundamental right to carry on his trade and profession in asmuchas he being unreasonably compelled to sell his products at a loss.
3. In their reply affidavits the respondents have denied that the Ordinance is either a spent up force or has been repealed by the Essential Commodities Act, 1955. It is further maintained that Clause 3 of the Ordinance does not suffer from the alleged vice of excessive delegation.
4. Elaborating on the first three points, Mr. P. P. Rao, appearing for the petitioner, contended that the occasion for promulgating the Ordinance was the State of emergency arisinc out of World War-II and therefore its life could not be extended beyond the period of that State of emergency which necessitated its promulgation and as such the Ordinance did not survive, for the life of this legislation is conterminous with that of the State of emergency which was the occasion for its promulgation. The failure of the Government to perform its duty under Clause 1 (4) of the Ordinance, cannot extend the life of the Ordinance. Further, the Constitution Act of 1966 having been repealed by the Constitution of 1956 the Ordinance does not survive as Section 5 of the Constitution Act of 1996 under which it was issued, stands repealed.
5. These arguments are, however, not well founded, for the word 'emergency' existing in the Ordinance does not refer to the World War-II and as such for its continuance it is not dependent upon the continuation of the World War-II. The preamble of the Ordinance reads:--
'Preamble. -- Whereas an emergency has arisen which makes it necessary to provide for the prevention of hoarding and profiteering;
Now, therefore, under Section 5 of the Jammu and Kashmir Constitution Act. 1996, we are pleased to make and promulgate the following Ordinance;'
Clause 1 (4) then provides:
'(4) It shall cease to be law from such date the Government may by order, declare to be the end of emergency which was the occasion of its promulgation.'
The word 'emergency' used in the preamble as also in Sub-clause (4) of Clause 1 is, in our opinion, referable only to the emergency created by the class or community to which the Ordinance relates and has reference to the articles which are covered under its definition and the conditions created by the dealers of those articles in not making available the articles to the consumers at reasonable prices. 'Emergency' has nothing to do with the existence or otherwise of the world War-II because if it has so, the language of the preamble would have been different The cut-break of war does affect the economy of a nation but that alone is not the touchstone for testing the vires of 'emergency' legislation. The promulgation and the continuance of a state of emergency, in a particular State, is a political decision and a matter exclusively for the subjective satisfaction of the Government of that State alone. It is not a subject matter for judicial scrutiny, unless of course it is shown to be mala fide or based on extraneous consideration. An emergency one declared by a proclamation would continue to be in force until another proclamation is made to bring it to an end, irrespective of the change in the circumstances which had necessitated the promulagation of emergency. The Ordinance was promulgated to check the price inflation and make various articles available to the consumers at reasonable rates. By no stretch of imagination, can it be said that the evil of hoarding and profiteering has ceased to exist. On the contrary, it is on the increase. Thus, the object for which the Ordinance was promulgated continues to be as valid today as it was at the time when it was promulgated and it is a fallacy to urge that the emergency which was the occasion for the promulgation of the Ordinance has expired by efflux of time. The Ordinance making authority had left it to the discretion of the Government to declare the end of the emergency by an order in writing and until so declared, the Ordinance cannot lose its validity for it is a permanent law validly promulgated. A challenge similar to the one raised by Mr, Rao was urged, to question the constitutionality of Jammu and Kashmir Enemy Agents Ordinance, 2005, which had been promulgated in the wake of the disturbances of 1947 in Rehman Shagoo v. State of Jammu and Kashmir, AIR 1960 SC 1. Their Lordships repelling the arguments observed :
'(12) It is argued that the conditions in the State have changed considerably since 1949 and therefore the Ordinance must be held to have lapsed. It is enough to say that there is nothing in this connection, even assuming that conditions in the State are not now exactly the same as they were in 1949. The Ordinance was a permanent piece of legislation. It is true that it came into existence because of an emergency, but that was only the occasion for assassing the Ordinance. The Ordinance, however, tries to reach an evil of deeper roots, and evil which cannot be said to have ceased to exist, viz. subversion of the Government established by law in the State in conjunction with the enemies of the State. Being a permanent law, it can only be brought to an end by means of repeal by competent authority. It is not the case of the appellants that the Ordinance has been repealed by any competent authority. It must therefore be held to be in force till such repeal even if the conditions now are assumed not to be exactly the same as in 1949. This contention therefore also fails.'
6. A Full Bench of this Court in Rattan Lal v. State, AIR 1969 J & K 5, while considering the vires of Essential Supplies (Temporary Powers) Ordinance, 2003 (since repealed under Section 16 of the Essential Commodities Act, 1955) repelled the argument that since that Ordinance of 2003 had been promulgated by His Highness for a limited period, it spent its force after that period was over. In the preamble of the said Ordinance it was provided that it was for a 'limited period that the Ordinance was being promulgated. What was that limited period was, however, not defined in the Ordinance, Their Lordships held that the Ordinance had been promulgated 'by His Highness' under his inherent authority, as contained in Section 5 and 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.' Both these judgments are a complete answer to the first two grounds of attack, as urged by Mr. Rao.
7. Even the next ground of attack namely; that the Ordinance had lapsed after the enforcement of Jammu and Kashmir Constitution Act, 1956, need not detain us because this point also stands concluded by the aforesaid two judgments. In Rehman Shagoo's case (AIR 1960 SC 1) (supra) repelling a similar argument it was coined as follows :--
'(11) The contention is that as Section 5 of the Constitution Act was repealed on November 17, 1951 the Ordinance which is stated to have been passed under the Section also came to an end. It is enough to say that there is no force in this argument. Clause (h) of Section 6 of the Jammu and Kashmir General Clauses Act No. XX of Smvt. 1977 clearly saves the Ordinance. It is as follows;--
'Where this Act, or any Act made after the commencement of this Act, receals any enactment hitherto made or hereafter to , be made, then unless a different intention appears the repeal shall not...... (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder: It will be clear that the promulgation of the Ordinance was a 'thing duly done' under Section 5 of the Constitution Act and the repeal of Section 5 of the Constitution Act would thus leave the Ordinance which was promulgated thereunder entirely unaffected. The repeal of Section 5 can only mean the withdrawal of that legislative power on and from the date of repeal. Anything done while the power subsisted cannot be affected by such repeal. A law enacted under a Constitution Act does not lose its vitality and would continue even though there may be repeal of parts of the Constitution Act under which it was enacted so long as the law is not inconsistent with the Constitution Act as it emerges after the amendment and repeal of certain provisions thereof. It dervies its binding force from the fact that it was within the competence of the legislature when it was passed and being permanent would continue till amended or repealed under the amended Constitution Act. We are therefore of opinion that the Ordinance did not come to an end on the repeal of Section 5 of the Constitution Act and remained a valid piece of legislation in view of Section 6 (b) of the Jammu and Kashmir General Clauses Act.'
8. The promulgation of the Ordinance was 'a thing duly done' under Section 5 of the Constitution Act and the repeal of Section 5 of the Constitution Act, 1969 would thus leave the Ordinance entirely unaffected by virtue of Clause 6 (b) of the General Clauses Act. The repeal of Section 5 can only mean the withdrawal of those legislative powers and anything done while those powers subsisted cannot be effected by such repeal.
9. Again, in Rattan Lal's case (AIR 1969 J & K. 5) (supra) the Full Bench observed that; '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.' They went on to State 'such an Ordinance had the force of law unless repealed by any competent authority.' Thus, it follows that the coming into force of Jammu and Kashmir Constitution, 1956 does not repeal the Ordinance which remains valid till repealed under Clause 1 (4) of the Ordinance. The Ordinance having not been repealed so far is a valid piece of legislation and does not suffer from any vice of unconstitutionality as urged by Mr. Rao. The arguments of Mr. Rao are, therefore, untenable.
10. Coming now to the question whether the Essential Commodities Act, 1955 (for brevity, 'the Act') repealed the Ordinance as is urged by Mr. Rao. To resolve this controversy, it is necessary to look into the scope of both the enactments,
11. The Act was extended to the State of Jammu and Kashmir along with many other Central Acts by Act No. 25, Central Laws (Extension to Jammu and Kashmir) Act, 1968. Although the Act itself repeals the corresponding laws enforced in the State, a provision was made in the Central Laws (Extension to Jammu and Kashmir) Act, 1968, in Section 5 of that Act. Section 5 provides:
'If immediately before commencement of this Act, there in force in the State of Jammu and Kashmir any law corresponding to any Act extending to that State, that law shall save as otherwise expressly provided in this Act stand repealed on such commencement.'
The object of this general provision was to see, that irrespective of the absence of repealing clause in a particular enactment, extended by the said Act, the parallel enactment already in force in the State of Jammu and Kashmir would stand repealed. Even by this general provision, any legislation dealing with matters covered under the Essential Commodities Act, 1955. would stand repealed. Thus, even if there was no repealing Clause in the Essential Commodities Act, the provisions of the Ordinance in so far as it attempts to control or authorise the supply and distribution of or trade and commerce in, any essential commodity, would stand repealed by force of Section 5 of the Extending Act of 1968. However, Section 16 of the Act is very emphatic and repeals any corresponding law on the subject covered by the Essential Commodities - Act, Sub-section (b) of Section 16 of the Act read as under:--
'(b) any other law in force in any State immediately before the commencement of this Act in so far as such law controls or authorises the control of the production, supply and distribution of, and trade and commerce in, any essential commodity.'
Under the impugned Ordinance, the State Government either itself or through its agency such as the Controller General regulates trade and commerce in various articles. Those actions would be without jurisdiction if the matter is covered by the Essential Commodities Act. 1955. The Ordinance, so far as it endeavours to control the supply, distribution or trade and commerce in, any essential commodity, must stand repealed by operation of Section 16 of the Act. The only question which, therefore, now remains to be determined, is the extent of the repeal of the Ordinance.
12. Sub-clause (a) of Clause 2 of the Ordinance contains the definition of Articles, the hoarding and profiteering of which is sought to be prevented under the Ordinance. That Clause reads as under:
'(a) 'article' includes any article or thing, except foodgrains, which has not, by notification in the Government Gazette, been declared by the Government to be an article or thing to which this Ordinance does not apply.'
13. A plain reading of the Clause shows that it excludes only foodgrains and embraces every other item which can be held to be an article. Food stuff is specifically covered by Section 2 (a) (v) of the Act. It is not disputed that sweetmeats, the prices bf which the Controller General sought to regulate under tthe Ordinance would be covered under the definition of Food stuff, as contained in Section 2 (a) (v) of the Act. The Ordinance, therefore, though a valid piece of legislation, would have no application, whatsoever, in view of the extension of the Essential Commodities Act, 1955 to the State to any kind of food stuff including edible oil seeds, oils and other articles declared to be essential commodities, under the Act.
14. Thus, it is obvious that any order passed, or notification issued by the State Government itself or through the Controller General to regulate the prices or trade in these items under the Ordinance is without jurisdiction. Such a notification or order could be made only under Section 3 of the Essential Commodities Act, 1955. Therefore, the Ordinance to the extent it empowers the Controller General to regulate the trade and commerce in or supply, distribution or production of any commodity, covered by the Essential Commodities Act, 1955, would stand repealed to that extent by the Act and any action taken under the Ordinance in respect of such matters as are covered under the Act, after the coming into force of the Act, would be an action taken under a repealed provision of law, and as such invalid and without jurisdiction. The Notification issued by the Controller General, fixing the prices of sweetmeats, therefore, is an act without jurisdiction and in that view of the matter Notification No. 71008/S dated 10-10-1978 cannot be sustained and must be quashed.
15. In the view that we have taken that the impugned Notification is invalid and without jurisdiction, having been issued under a repealed law, we do not deem it necessary to determine in this case whether or not Clause 3 of the Ordinance is ultra vires the Constitution and suffers from the vice of arbitrariness as urged by Mr. Rao.
16. As a result of the aforesaid discussion. Notification No. 71008/S dated 10-10-1978 is hereby quashed. It shall, however, be open to the State Govt. to make an order under Section 3 of the Act, which is wide enough to cover the subjects covered by the Notification and fix the prices etc. of the various articles. It is admitted that the Central Government has already delegated powers to issue such orders to the State Government under Section 5 of the Act and therefore it is for the State Government now to act and proceed under the Essential Commodities Act, 1955, if so advised.
17. Since the points argued were fairly debatable, we leave the parties to bear their own costs.
G.M. Mir, J.
18. I agree.