1. Eleven butchers of Muzaffarabad were arrested on 11th April 1970 on the charge of having contravened certain orders passed by the District Magistrate purporting to act in exercise of powers vested in him under section 2 of the Emergency Powers Act read with Council Order No. 471, dated 22-10-1958.
2. The butchers had been selling mutton at the rate of Rs. 3 per seer. In view of increased rates in the immediate neighboring towns and cities of Pakistan, they have been clamoring for an increase of Re. 1 per seer but at the same time there was strong public opinion against any increase whatsoever. The butchers are, thereupon, alleged to have resorted to unhealthy practices. So the District Magistrate passed the following order on the 26th March 1970: - "Whereas I have satisfied myself that the Qasabs within Municipal limits of Muzaffarabad town are charging exorbitant rates of mutton and beef; Whereas they also create artificial scarcity of mutton and beef to the disadvantage of general public; Whereas it has become necessary to safeguard the interests of general public and anti-social activities of these Qasabs be checked and regulated; Whereas I have declared certain essential commodities and fixed the maximum prices of mutton and beef vide this Office Order No. 1802-12/DM, dated 25-3-1970 and No. 1816-26/DM, dated 26-3- 1970 respectively; Now, therefore I Khalil Ahmed Qureshi, District Magis--trate Muzaffarabad in exercise of the powers vested in me under section 2 of the Emergency Powers Act read with Council Order No. 471/58, dated 22-10-1958 hereby direct as under: --
(1) All Qasabs shall hang price lists legibly written in front of their shops.
(2) No Qasab shall adulterate mutton and beef by stuffing water and air.
(3) No Qasab shall create artificial scarcity of mutton and beef and they shall have sufficient stock of mutton and beef at their shops in order to make available to the customers from 6-30 a.m. To 3 p.m.
(4) No Qasab shall resort to strike or such other methods.
3. The violation of any of the provisions of this order shall be punishable under Emergency Powers Act, 1958.
4. This order shall be given wide publicity by beat of drum and shall also be published in Government Gazette.
5. Given in my hand and seal of the Court on this 26th day of March 1970."
6. It will thus be seen that under this order, among other things, the butchers were required to keep their shops in the municipal market open up to 3 p.m. And male mutton available for sale.
7. On 11th April 1970 the Additional Sub-Judge Magistrate 1st Class inspected the market at 12 a.m. And found all shops of butchers closed. The District Administration treating it as a wilful violation of the District Magistrate's order registered a case against them under section 13 of the Emergency Powers Act. It is against this order that the accused have come in revision to this Court. After hearing preliminary arguments from both sides on the 16th of April I ordered their release on the same day and adjourned the case for further arguments.
8. Before proceeding to discuss the question of law involved it would be convenient to reproduce section 2 and section 8 (vi): --- Section 2(i): --- "The Government may by notification make such orders as may be deemed necessary or expedient for securing the defence of the State or for preventing persons from acting in a manner prejudicial to safety or for maintenance of law and order.
9. 2(ii) Without prejudice to the generality of the powers conferred by subsection (i) such orders may provide for all or any of the following matters namely :-
(ii) control and supply of essential commodities rationing and control of prices ; Section 8(vi) :- "No person or syndicate or firm shall hoard foodgrains in violation of existing orders or any orders that may be issued by the Government or other competent authority or indulge in black-marketing by selling commodities at rates higher than those fixed by the competent authority."
10. On the 22nd of October 1958 the Government purport--ing to act under section 2 issued a Notification empowering the District Magistrates under this very section to pass necessary orders for preventing hoarding of essential com. Modities by means of a Notification. This Notification is reproduced below :- "In pursuance of the provisions of section 2 of the Azad Jammu and Kashmir Emergency Powers Act, 1958 read with section 8, subsection (4) of the said Act, the Azad Government is pleased to direct that the District Magistrates shall take such steps, pass such orders and give such directions as may be deemed necessary by them to prevent hoarding of foodgrains and such other commodities as may be notified by them to be essential within the local limits of their ordinary jurisdiction."
11. Obviously the Government did not, on that date, have any power or authority under the Emergency Powers $ Act to confer such Powers on the District Magis--trates and reference to section 2 of the said Act in this Notification is immaterial because this section did not authorise the Government to delegate this legislative power to any other authority.
12. The Government ultimately seems to have become conscious of this difficulty and, therefore, on the 19th of December 1958 enacted in its legislative capacity the Emergency Powers Amendment Act of 1958. By this Amendment Act, among other things, a new section was inserted as section 19 which is reproduced below "The Government may by order direct that any power or duty which under section 2 is conferred or imposed upon, the Government shall in such circumstances and under such conditions, if any, as may be specified in the direction, be executed or discharged by any officer or authority."
13. The use of the words "executed" is somewhat unhappy ; it should have been "exercised" but let us for the sake of argument suppose that this section is correctly worded and that under this section the Government was empowered to delegate its powers, which it enjoys under section 2, to any other authority.
14. This Amendment Act has not been given retrospective effect as is evident from the following :--- "Section 1 subsection (2).-It applies to the whole of Azad Kashmir Territory and shall come into force at once."
15. It would mean that it came into force on the 19th of December 1958, the date when it was enacted and enforced. That the Government has not since the 19th of December 1958 the date of coming into force of this Amendment Act, issued any order delegating its powers wholly or partly which it enjoys under section 2 of the Act to the District Magistrates is quite apparent and has been conceded even by the learned Counsel appearing for the Government. That the District Magistrate in this case has referred to the Government Notification of 22nd October 1958, as the source of his authority, leaves no room for doubt that no order o or Notification was issued by the Government since the coming into force of section 19. The position that thus emerges is as follows: ---
(1) On 22-10-1958 when the District Magistrate was invested by the Government with powers under section 2, the Government had no authority or power to do the same.
(2) The authority to delegate such powers was conferred on the Government for the first time on the 19th Decem--ber 1958.
(3) No order conferring such powers on the D. M. Has been issued since the enactment and enforcement of section 19 on the 19th of December 1958.
(4) The Amendment. Act incorporating section 19 enforced on 19-12-1958 has not been given retrospective effect by the Legislature.
16. Therefore, as on the 22nd of October 1958 the Govern--ment did not possess the authority to delegate its powers under section 2 to the District Magistrates, the Notifi--cation conferring such powers on the latters is invalid and ultra vices.
17. As no such order has been issued by the Government since the 19th of December 1958 when authority to delegate its powers under section 2 was conferred by the Amendment Act on it and the Amendment Act not having been given retrospective effect the notification remains a nullity and has no force in the eyes of law.
18. I, therefore, accept the revision petition and holding the District Magistrate's orders of the 26th of March 1970 as being ultra vires of the Emergency Powers Act and without jurisdiction, set it aside and quash the proceedings taken against the petitioners.