1

959

Ra,dha Prasad

Singh

v.

Gajadhar Singh

'and Others

Das Gupta].

1959

September IfJ

680 SUPREME COURT REPORTS [1990(1)]

no prayer for pre-emption for the Dakhili villages of

Tauza No. 1130.

In our.opinion ~he plaintiff having failed to prove

that the mformat1on of the sale was conveyed to him

by Jadunath on January 2, 1!!44, the suit was rightly

dismissed by the High Court. This appeal is, there­

fore, also dismissed with costs.

REHMAN SHAGOO AND OTHERS

v.

STATE OF JAMMU AND KASHMIR

(S. R. DAS, C.J., s. K. DAS, A. K. SARKAR,

K. N. WANCHOO and M. HIDAYATULLAH, JJ.)

Constitutioti-Legislative competence of Ruler of ]ammu and

Kashmir-Ordinance promulgated creating new offence of aiding the

enemy and prescribing trial by special Judges following special

procedure-If discriminatory-Whether Ordinance was legislation

with respect to defence-Defence, meaning of-Repeal of law

empowering Ruler to legislate-Whether Ordinance survives-Cess­

ation of emergency-If Ordinance occasioned by emergency also lapses

-Jammu

and Kashmir Constitution Act, 5.

r996, s. 5-Enemy

Agents Ordinance, 5. 2005 CJ. K. Ordinance V Ill of 5. 2005)­

J ammu and Kashmir Constitution (Amendment) Act, S. 2005 (]. K.

XVII of S. 2005)-Jammu and Kashmir General Clauses Act,

s. r977 (]. K. XX of 5. r977), s. r6(b)-Constitution of India,

Art,

I4; Part XV JI[,

Under the J ammu and Kashmir Constitution Act

all powers,

legislative, executive and judicial vested in

the Ruler. On the

accession of the State to India on October 22,

1947, the, powers in

respect of defence, external affairs and communications were

ceded to India. Under s. 5 of the Constitution Act, the Ruler

promulgated the Enemy Agents Ordinance, S. 2005, which provided

for the trial and punishment of enemy agents and other persons

siding the enemy.

The Ordinance provided for

trial of offences

by Special Judges and prescribed a procedure materially different

from

that followed in the criminal

Courts. Section 5 of the

Constitution Act was repealed on· November 17, l95I. The

appellants were prosecuted under the Ordinance for offences

alleged to

have been committed on June 27 and 28,

1957· They

contended (i) that the Ordinance violated Art. 14 of the Constitu­

tion of India, (ii) that the Ruler had no legislative competence to

issue the Ordinance

as it dealt with defence,

·(iii) that s. 5 of the

S.O.R. SUPREME COURT REPORTS 681

J. K. Constitution Act having been repealed the Ordinance came

to

an end, (iv) that the Ordinance had lapsed as the emergency

on account of which

it was issued had ceased, and (v) that the

Ordinance was void as it was inconsistent with the Emergency

Provisions

in Part

XVIII of the Constitution of India.

Held, that the Ordinance was intra vires, valid and subsisting.

The Ordinance was not discriminative and did not violate

Art. 14 of the Constitution. In view of the circumstances existing

in

the

State, " enemy agents" and other persons aiding the

" enemy " to whom the Ordinance applied formed a reasonable

classification which was founded on

an intelligible differentia

which distinguished such persons from

others and the differentia

had a rational relation to the object of the Ordinance which was

to check subversion of the Government. Besides, if the Ordinance

did

not make any classification of persons but only created an

offence and provided stringent procedure and punishment then

there was no discrimination at all as everybody who committed

the offence was subjected to the same procedure.

Ram Krishna Dalmia v.

Shri ]1tstice S. R. Tcndolkar, [1959]

S.C.R. 279 followed.

The Ordinance was not legislation with respect to defence

and was within the legislative competence of the Ruler. The

entry "defence " dealt only with the armed forces whether on

land or sea or in the air and the raising or maintenance of such

forces

and their operations. The Ordinance dealt in the main

with certain acts done with the intent to aid the enemy though

indirectly

it was concerned with the operations of the armed

forces.

In pith and substance the Ordinance was a law relating

to public order, criminal Jaw

and procedure and not defence.

Though s. 5 of the

Constitution Act was repealed the

Ordinance was saved by s. 6(b) of the Jammu and Kashmir

General Clauses Act. Section 6(b) saved, inter alia, "anything

dulv done " under a repealed enactment and the Ordinance was a

" tl;ing duly done " under s. 5 of the ConstitutiGm Act.

The Ordinance was a

permanent piece of legislation. It came

into existence because of an emergency

but that was only the

occasion for passing it. Being a permanent Jaw it could only be.

brought to an end by means of repeal by competent authority.

The Emergency Provisions in

Ch. XVIII of the Constitution of

India had nothing to do with the validity or otherwise of the

Ordinance and the question of any inconsistency between the

Ordinance

and these provisions

did not arise.

CRIMINAL APPELLA'l'E JURISDICTION: Criminal

Appeal No. 60of1958.

Appeal from the judgment and order dated the

19th February 1958, of the ,Tammu and Kashmir High

Court, i11 Writ Petition No. 53 of 1957.

x959

Rehman Shagoo

and Others

v.

State of Jammu

and Kashmir

Wanohooj.

z959

Reh1nan Shagoo

and Others

v.

State of] am111u

and /( ashn·iir

Wanchoo ].

682 SUPREME COURT REPORTS [1960(1))

R. V. S. Mani, for the appellants.

Jaswant Singh, Advocate-General for the State of

Jammu and Kashmir, G. S. Pathak and T. M. Sen for

the respondent.

1959. September 10. The Judgment of the Court

was delivered by

WANCHOO J.-This appeal, on a certificate granted

under Art. 132 of the Constitution of India (herein­

after called the Constitution) by the High Court of

Jammu and Kashmir, raises the constitutionality of

the Enemy Agents Ordinance), No. VIII of S. 2005

hereinafter called the Ordinance), promulgated by His

Highness under s. 5 of the Jammu and Kashmir Cons­

titution Act, S. 1996, (hereinafter called the Constitu­

tion-Act). The appellants also made an application

under Art. 132

(3) of the Constitution to this

Court for

permission to urge other grounds

taken by them in the

High

Court besides those relating to the interpretation

of the Constitution. We intimated at the outset of the

arguments that this application was being allowed

and learned counsel for the appellants was permitted

to make his submissions on all points raised in the High

Court.

The appellants are being prosecuted before a Special

Court constituted under the Ordinance for offences

under s. 3 of the Ordinance, ss. 3, 4 and 5 of the

Explosive Substances Act, (VI of 1908), s. 120-B of the

Penal Code and s. 29 of the Public Security Act read

with rr. 28 and 32 of the Rules thereunder. The incid­

ents out of which this prosecution arose took place.on

June 27 and 28, 1957.

The circumstances in which the Ordinance came to

be passed were these : Outside raiders began attacking

Kashmir on October 22, 1947. The State acceded to

India on October 26, 1947. It appears that the Enemy

Agents Ordinance, No. XIX of S. 2004 was enacted

soon

after in January 1948. There was

"cease-fire"

on January 1, 1949 and the raids came to an end. This

was followed by the present Ordinance which became

law

an January 24, 1949. The preamble to the

Ordin­

ance says that an emergency had arisen as a result of

S.C.R SUPREME COURT REPORTS 683

wanton attacks by outside raiders and enemies of the

State which made it necesary to provide for the trial

and punishment

of enemy agents and persons

commit­

ting certain offences with intent to a.id the enemy and

as

it was necessary to amend Ordinance XIX of

S. 2004,

therefore, the Ordinance was passed consolidating the

law and repealing the earlier Ordinance.

The main contentions of the appellants in the High

Court were that the Ordinance was unconstitutional

and void by reason of the violation of Art. 14 of the

Constitution

and that His Highness had no legislative

competence to enact

it and that in any case it came

to an end when s. 5 of the Constitution-Act was

repeal­

ed in 1951.

The High Court was of the view that there was a

reasonable classification

and that the classification was

founded

on an intelligible differentia which

distinguish­

ed persons or things that were grouped together from

those left out

of the group and the differentia had a

rational relation with

the object sought to be achieved

by the Ordinance. It therefore held that the

Ordinance

was not hit by Art. 14. It was further of the view

that His Highness had legislative competence to pro­

mulgate the Ordinance when he did so and that when

certain subjects were made over to

the Government

of India by

the Instrument of Accession,· the State

retained its powers to legislate eveµ ·on these subjects

so long as

the

State law was not repugnant to any law

made by the Central Legislature, thus holding that

there was concurrent power in the State to legislate

even

on the subjects transferred to the Government of

India. Finally, the High

Court held that the repeal

of s. 5 of the Constitution-Act did not result in the

Ordinance coming to an end, ass. 6 of the Jammu and

Kashmir General Clauses Act saved it. It, therefore,

dismissed

the writ petition filed by the appellants.

The main contentions

of the appellants before us are

these:-

(1) The Ordinance is unconstitution&l as it violates

Art. 14

of the Constitution.

(2) There was no legislative competence in His

Highness to issue the Ordinance under s. 5 of the

I959

Rehman Shagoo

and Others

v.

State of J ammu

and Kashmir

Wanchooj.

I959

Rehman Shagoo

and Others

v.

State of] ammu

and Kashmir

Wanchoo J.

684 SUPREME COURT REPORTS [1960(1)]

Constitution Act, as

His Highness had executed the

Instrument of Accession on

October 26, 1947 surren­

dering his powers regarding Defence, Communica­

tions and External Affairs to the Government of

India and the Ordinance came under the head

" Defence ".

(3) Section 5 of the Constitution-Act was repealed

by an amending Act, No. XVII of S. 2005, passed

on November 17, 1951, and therefore the Ordinance

also came to an end on the day s. 5 was repealed.

(4) The Ordinance has in any case lapsed as the

conditions under which it was enacted had become

obsolete

and did not exist any more.

(5) The

Ordinance was void as it was inconsistent

with Art. 352 of the Constitution and the Articles

following.

Re. (1)

The

Ordinance defines " enemy" and" enemy agent"

in s. 2. Section 3 provides that whoever is an enemy

agent or, with intent to aid the enemy, does or

attempts or conspires with any other person to do any

act which is designed or likely to give assistance to

the military or air operations of the enemy or to

impede the military or air operations of Indian forces

or His Highness' forces or the forces of any Indian

State or te endanger life or is guilty of incendiarism

shall be liable to various punishments. Section 4 pro­

vides that any offence punishable under s. 3 shall be

triable under this Ordinance and that where any

other offence is committed along with an offence under

s. 3 which may be jointly tried under the Code of

Criminal Procedure, a special Judge trying the offence

under s. 3 shall also try the other offence in accordance

with the procedure laid clown by the Ordinance.

Section 5 provides for appointment and jurisdiction of

Special Judges. Section 6 gives power to the govern­

ment of the State to transfer proceedings from one

Special.Judge

to another and provides for the procedure

to be followed by the

Special Judge to whom a case is

transferred. Section 7 lays down that the procedure

for

trial of warrant cases shall be followed by

Special

S.C.R. SUPREME COURT REPORTS 685

Judges and no commitment proceedings would be

necessary.

This action also gives powers to Special

Judges in the matter of recording evidence,

summon­

ing witnesses and adjournments and the Special Judge

is deemed to be a Court of Session. Section 8 provides

for sentences

to be passed by the Special Judge.

Sec­

tion 9 provides for power of review by a Judge of the

High Court, designated by the Government and the

decision of such Judge is made final. Section 10 gives

power

to the

Special Judge and the Reviewing Judge

to hear proceedings in camera if it is expedient in the

interest of public safety or the defence of the State so

to do. Section 11 days down that an accused person

triable under the Ordinance may be defended by a

pleader if the Special Judge or the Reviewing Judge

grants permission in this behalf and also gives power

to the Special Judge or the Reviewing Judge to appoint

a pleader for an accused who has not engaged a pleader

himself. Section 12 provides for a special rule of

evidence empowering the Special Judge to admit cer­

tain statements recorded by a magistrate, when the

person who made them is dead or cannot be found or

is incapable of giving evidence. Section 13 provides

for powers

to deal with a situation arising out of

in­

transigent conduct of accused persons during the course

of trial. Section 14 takes away the power of all courts

to interfere with the proceedings or orders of the

Special Judge or to transfer any case pending before

him or to make any order under s. 491 of the Code of

Criminal Procedure. Section 15 prohibits the giving

of copies of records of any case before a Special Judge

to any one except to an accused or his pleader and

makes it punishable for such accused or pleader to

show the copy to any other person or to divulge its

contents to anybody except in the course of proceedings ·

for the purpose of which it was obtained. It further

provides for the return of the copies within ten days

after the conclusion of the proceedings before the

Special Judge. Section 16 provides for the application

of the Code of Criminal Procedure or any other law for

the time being in force to proceedings under the Ordin­

ance in so far as they are not inconsistent with its

s,

I959

Rehman Sha goo

and Others

v.

State of] ammu

and Kashmir

Wanchoo ].

r959

R1hman Shagoo

and Others

v.

Stale of J ammU

and Kashmir

Wanchoo J.

686 SUPREME COURT REPORTS [1960(1)]

provisions. Section 17 makes disclosure of information

prohibited under s. 15 punishable. Section 18 gives

power

to the Government to make rules necessary to

carry into effect the purposes of the Ordinance.

Section

19 repeals the Enemy Agents Ordinance, XIX of

S. 2004, but provides that all rules made, orders issued,

prosecution

and action taken and punishment awarded

under the repealed Ordinance shall be deemed to have

been made, issued, ta.ken and awarded under the

Ordinance.

It will be clear from this

analysis of the prov1s10ns

of the Ordinance that the procedure under the Ordi­

nance is in material respects different from the ordinary

procedure of Criminal Courts dealing with offences.

The contention of the appellants is that this amounts

to discrimination and therefore the Ordinance is void

and unconstitutional as it violates Art. 14. of the

Constitution.

The provisions of Art. 14 of the Constitution have

come up for discussion before this Court in a number

of cases. It is now well established that "while Art. 14

forbids class legislation, it does not; . forbid reason­

able classification for the purposes of legislation.

In order, however, to pass the test of permissible

classification

two conditions must be fulfilled, namely

(i) that the classification must be founded on an intel.

ligible differentia. which distinguishes persons

or things

that a.re grouped together from others left out of the

group and, (ii) that that differentia. must have

a. rational

relation to the object sought to be achieved by the

statute in question. The cla.ssifiea.tion may be founded

on different bases, namely, geographical, or according

to objects or occupations or the like. ·What is neces­

sary is that there must be a. nexus between the basis of

classification and the object of the Act under consider­

ation. It is also well established by the decisions of

this Courl that Art. 14 condemns discrimination not

only by a. substantive law but also by a. law of proce­

dure." (see Sri Ram Krishna Dol,mia v. Shri Justice

S. R. Tendolkar(')). We have, therefore, to see whether

there is reasonable classification for the purposes of the

(1) [19~9] S.C.R. 219,

S.C.R. SUPREME COURT REPORTS 687

Ordinance. Now the Ordinance was passed in January

1949 soon after the cease-fire. But though the attack

by the outside raiders and enemies of the State had

come to an end it was felt that conditions were such

that the emergency continued and it was necessary to

provide for trial and punishment of enemy agents and

persons committing certain offences with intent to aid

the enemy by a special procedure which was enacted

in the Ordinance.

With that end in view, an

"enemy"

was defined to mean and include "any person directly

or indirectly, participating or assisting in the campaign

recently undertaken

by raiders from outside in

sub­

verting the Government established by law in the

State." An " enemy agent" was defined as meaning

" a person, not operating as a member of enemy armed

force, who is employed by, or works for or acts on

instructions received from

the

enemy." It is clear,

therefore,

that

"enemy " and "enemy agent " are. a

clearly defined class of persons and would give rise to

a. reasonable classification for the purpose of the

Ordinance. Section 3 provides for punishment of a

person who is an enemy agent or who does certain

things with

intentto aid the enemy. There can be

no doubt in

the circumstances existing in the

State

then and now that the classification is reasonable and

is founded on an intelligible differentia which distin­

guished persons brought under the Ordinance from

others. There is also no doubt

that the differentia. had a rational relation to the object sought to be achieved

by the Ordinance. There had recently been a

campaign to subvert the government established by

law in the State and though the actual raids were over,

the danger of subversion of the government was not

over and the threat from those who intended to aid

the enemy continued. In these circumstances the

Ordinance was enacted and provided a special proce­

dure for the trial of enemy agents or those who did

certain things with intent

to

a.id the enemy, the object

of such persons being to subvert the government esta­

blished by law in the State. If it is said that the

Ordinance does not purport to make any classification

of persons at all but only creates an offence and

1959

Rehman .Shagoo

and Others

v.

State of] ammu

and Kashmir

Wa>tj:hoo

].

688 SUPREME COURT REPORTS [1960(1))

I959

provides a stringent procedure for the punishment of

ReltmanShagoo that offence, then there is no discrimination at all, for

a11d Others anybody who commits that offence is subjected to the

v. drastic procedure. It has also to be remembered that

State of J a"'"'" in order to repel the charge of discrimiriation the

and J(ashmir permissible classification need not be of persons only.

wanchoo J. Certain offences may be so heinous or serious that they

may in certain circumstances be treated as a class and

tried in a different way. The offence created ·by s. 3

of the Ordinance is not found as such in the Penal

Code but is a new offence of an aggravated kind which

may in the circumstances prevailing in the State

mentioned above be treated as different from the

ordinary offences and may well be dealt with by a.

drastic·procedure without encountering the charge of

violation of the equal protection clause. We are,

therefore,

of opinion that on the principles laid down

by this

Court in the large number of cases summarised

in the Dalmia case (1), the Ordinance cannot be said to

be discriminatory and, therefore, violative of Art. 14 of

the Constitution. The contention under this head on

the constitutionality of the Ordinance therefore must

be rejected.

Re. (2).

The 01·dinance purports to have been promulgated

under s. 5 of the Constitution-Act, which declared that

all powers, legislative, executive and judicial, in rela-

. tion to the State and its government, were always in­

herent in and possessed and retained by His Highness

and nothing in the Act was to affect or deemed to have

affected the right and prerogative of His Highness to

· make laws, and issue proclamations, orders and ordi­

nances by virtue of his inherent authority. It is, how­

ever, submitted that on account of the accession.of the

State to India on October 26, 194 7, certain matters

were surrendered to the Government of India and

therefore His Highness had no power left to legislate

on matters so surrendered. These matters are to be

found

in the

Schedule to the Instrument of Accession(').

This Schedule consists of 20 items, grouped under

(1) [1959] S.C.R. 279.

(2) Appendix VII of the White Paper on Indian States. p. 165.

;

-

S.C.R. SUPREME COURT REPORTS 689

four

neads: (A) Defence, (B) External ,Affairs,

(C)

Communications and (D) Ancillary. We are not here

concerned

with heads (B) and

(C) and need. only

consider

the items under (A) and (D). There are four

items under

the head

" Defence ", namely-

1. The naval, military and air forces of the Domi­

nion and any other armed force raised or maintain­

ed by the Dominion, any armed forces, including

forces, raised or maintained

by an acceding State,

which are

attached to, or operating with, any of the

armed forces of the Dominion.

2. Naval, military and air force works,

admini­

stration of cantonment areas.

3. Arms, fire-arms, ammunition.

4. Explosives.

And there

are four items under the

head" Ancillary",

namely-

1. Elections to the Dominion Legislature, subject

to the provisions of the Act and of any Order made

thereunder.

2.

Offences against laws with respect to any of the

aforesaid matters.

3. Inquiries

and statistics for the purposes of any

of the aforesaid matters.

4. Jurisdiction and powers of all courts with

res­

pect to any of the aforesaid matters, but except

with

the consent of the Ruler of the acceding State,

not so as to confer any jurisdiction or powers upon

any courts other

than courts ordinarily exercising

jurisdiction in or in relation to

that State.

The contention on behalf of the appellants is that the

provisions' of the Ordinance were in particular covered

by item ( 1) under the head

" Defence ". It is also urged

that the High Court was not correct in holding that

there was concurrent jurisdiction in the State as well

as

the

Central Legislature even with respect to items

in the Schedule and that on a correct interpretation of

the Instrument of Accession, the Central Legislature

alone

had power to legislate with respect to the

matters in the Schedule. We do not think it necessary

to decide in this case whether the State had concurrent

I959

Rehman Shagoo

and

Others

v.

State of ]ammu

and Kashmir

Wanehoo ].

I959

Rehman Shagoo

and Otheis

v.

Stale cf ]animu

and Kashmir

Wane/Joo].

690 SUPREME COURT REPORTS [1960(1)]

powers to lRgislate on matters covered by the Schedule

and shall proceed on the assumption that the Central

Legislature alone

had the power to legislate on these

matters. The question then which immediately arises

is whether

the Ordinance is covered by item (I)

under·

the head " Defence ". The other items either under

the head " Defence " or under the head , " Ancillary "

are immaterial for this purpose. If the Ordinance is

not covered by item (I) under the head" Defence", it

would then be within the competence of the State

Legislature or of His Highness to promulgate it, for all

other matters besides those covered by the twenty

items in the Schedule in any case remained with the

State. Item ( l) under the head " Defence " deals

with

the naval, military and air forces of .the Dominion

and any other armed forces raised or maintained by

the Dominion and includes any armed forces including

those raised

or maintained by any acceding State,

which are

attached to, or operating with any armed

forces

of the Dominion. Howsoever wide an

interpret­

ation is given to this entry it will be seen that it deals

only with

the armed forces whether on land or sea or

in the air and the raising or maintenance of such forces 11.nd their operations. The Ordinance has, in our opinion,

nothing

to do with the matters covered by this entry.

It is true that it defines

" enemy " and " enemy agent"

and creates offences with reference to certain acts done

with

intent to aid the enemy including giving of

assist­

ance to the millitary or air operations of the enemy

or impeding the military or air operations of Indian

forces or His Highness' forces or the forces of any

Indian State. But it is only indirectly concerned with

the operations of the armed forces and its main pur­

pose is to deal with persons who with intent to aid the

enemy commit certain acts including assistance to the

military or air operations of the enemy or impediment

to

the military or air operations of the Indian armed

forces. Besides this reference to military or air

opera­

tions, the rest of the provisions of the Act has nothing

to do with the armed forces and if one looks at the

pith and substance of the Ordinance it will be found

that it deals with persons who are concerned with the

S.C.R. SUPREME COURT REPORTS 691

subversion of the government established by law by

becoming enemy agents or doing certain acts with

intent to aid the enemy. In pith and substance there­

fore,

the

Ordinance deals with public order and criminal

law

and procedure; the mere fact that there is an

indirect impact on armed forces ins. 3 of the

Ordinance

will not make it in pith and substance a law covered

by item (1) under the head "Defen9.e" in the Schedule.

We are therefore

of opinion that there is no force in

the contention that the

Ordinance was beyond the

legislative competence of His Highness because certain

matters were ceded in the Instrument of Accession

dated October 26, 1947, to the Government of India.

This contention must also fail.

Re. (3) .

. The contention is that as s. 5 of the Constitution-Act

was repealed on November 17, 1951,

the

Ordinance

which is stated to have been passed under that section

also came

to an end. It

is enough to say that there is

no force in

this argument. Clause (b) of s. 6 of the

Jammu and Kashmir General

Clauses Act, (J.K.XX

of S. 1977), clearly saves the Ordinance. It is as

follows:-

" Where this Act, or any Act made after the

commencement of this Act, repeals 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 enact­

ment 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 s. 5 of the Constitution­

Act and the repeal of s. 5 of the Constitution-Act

would

thus leave the

Ordinance which was promul­

gated thereunder entirely unaffected. The repeal of

s. 5 can only mean the withdrawal of that legis­

lative 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 Constitu­

tion-Act under which it was enacted as long as the law

I959

Rehman Shagoo

and Others

v.

Stateof}ammu

and Kashmir

Wanchoo

].

I959

Rehman Shagoo

and Others

v.

State of j ammu

and Kashmir

Wanchoo J.

692 SUPREME COURT REPORTS [1960(1))

is

not inconsistent with the Constitution.Act as it

emerges after the amendment and repeal of certain

provisions thereof.

It derives 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

Ordinal!ce did not come to an end on

the repeal of s. 5 of tqe Constitution-Act and remained

a valid piece

of legislation in view of s. 6 (b) of the

Jammu and Kashmir General Clauses Act.

Re. (4).

It is urged 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 contention, 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 passing the Ordinance. The

Ordinance, however, tries to reach an evil of deeper

roots,

an 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

th@ 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.

Re. (5).

It is urged that the Ordinance was unconstitutional

because it is inconsistent with Art. 352 and the

subsequent Articles. We must say that Art. 352 and

the subsequent Articles in Part XVIII of the Consti­

tution relating to Emergency Provisions have nothing

whatsoever to do with the validity or otherwise of the

Ordinance. \Ve have been unable to understand how

there can be any inconsistency between the Ordinance

-

S.C.R. SUPREME COURT REPORTS 693

and the provisions contained in Part XVIII of the

Constitution. This contention also fails.

It now remains to notice three points that were

urged during

the course of arguments on behalf of the

appellants, namely, (i) s. 4 (1) of the Ordinance is hit

by Art.

20 (1) of the Constitution, (ii) s. 11 (1) is hit by

Art. 22 (1) of the Constitution, and (iii) the' Special

Judge has no jurisdiction to try an offence under the

Explosiv-e Substances Act. Apart from the fact that

these points not having been raised by the appellants

in their writ petition or urged before the High Court,

we should be reluctant to permit them to raise these

points for the first time in this Court, we may, in

passing, point

out that the offences for which the

appellants are being prosecuted are said to have taken

place in June 1957 and that they have been allowed to

engage lawyers of their choice. They can therefore

have no grievance so far as the first two points are

concerned

and we leave them to be decided in a

case

where there is grievance. There is no substance in the

third point.

There is no force therefore in this appeal

and it is

hereby dismissed.

Appeal dismissed.

LILACHAND·TULJARAM GUJAR AND OTHERS

v.

MALLAPPA TUKARAM BORGA VI AND OTHERS

(S. R. DAS, C.J., M. HIDAYATULLAH and

K. c. DAS GUPTA, JJ.)

Occupancy, relinquishment of-Registered occupant surrender­

ing occupancy-Such surrender, if and when can bind other occupants

-Bombay Land Revenue Code, r879 (Bom. V of r879), s. 74.

The suit out of which the present appeal arose was one for

redemption of some occupancy lands, owned and mortgaged by

two brothers, S and A, the Khata of the lands standing in the

name of S as the registered occupant under s. 74 of the Bombay

Land Revenue Code, 1879. The mortgage, which was a usufruct­

uary one, was executed by S and A in 1888 in favour of the

predecessors-in-interest of the appellants. By a Rajinama filed

under s.

74 of the Code in

1900, S made an unconditional

88

I959

Rehman Shagoo

and Others

v.

State of Jammu

and Kashmir

Wanchooj.

I959

September II.