LexREHMAN SHAGOO AND OTHERS versus STATE OF JAMMU AND KASHMIR
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1959 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 Section 5 of the Constitution Act was repealed on· November 17, l95I.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.
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