Full Judgment Text
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PETITIONER:
FIDA ALI AND OTHERS
Vs.
RESPONDENT:
STATE OF JAMMU AND KASHMIR
DATE OF JUDGMENT30/04/1974
BENCH:
GOSWAMI, P.K.
BENCH:
GOSWAMI, P.K.
MATHEW, KUTTYIL KURIEN
ALAGIRISWAMI, A.
SARKARIA, RANJIT SINGH
CITATION:
1974 AIR 1522 1975 SCR (1) 340
1974 SCC (2) 253
CITATOR INFO :
RF 1975 SC1193 (27)
E 1990 SC1771 (12)
ACT:
Jammu and Kashmir Agrarian Reforms Act, 1972-Whether the Act
is protected by Art. 31A of the Constitution.
HEADNOTE:
In this Writ petition, the constitutional validity of the
Jammu and Kashmir Agrarian Reforms Act. 1972 and the rules
framed thereunder has been challenged. The short question
for determination is whether the Act is protected under Art.
31A of the Constitution as applicable to the State of Jammu
and Kashmir, providing for a scheme of agrarian reforms.
According to the petitioners, who are landowners in the
State of Jammu and Kashmir, they have been rendered landless
by the Act. They further allege that ,the proposed
compensation is illusory and the exclusion of an "Orchard"
from the definition of land is motivated and that the Act is
not a piece of legislation bearing on agrarian reform and
therefore. it is not protected by Art. 31A of the
,Constitution.
Dismissing the petition,
HELD :-(1) From the provisions of the Act, it is clear that
the Act contains a programme of agrarian reforms in taking
stock of the land in the State which is not in personal
cultivation and which though in personal cultivation is in
excess of the ceiling area of 121 acres. The main focus of
the Act is to See that the tillers, who form the backbone of
the agricultural economy, are provided with ,land for the
purpose of personal cultivation subject to the ceiling
provision.
[345H-346B]
The Act makes effective provisions for creating a granary of
land at the disposal of the State for equitable distribution
subject to the limit, amongst the tillers of the soil and
even the owners who would make ’personal cultivation’ of the
same within the meaning of the Act. [346B-C]
(2)In the present case, there is no discrimination in
favour of the orchard owners because in fixing the ceiling
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areas. land and orchards are both included and the
definitions of ’land’ and ’orchard’ under the Act clearly
permit of ,some special treatment to orchards in view of
scheme of the entire Act. Further. there is reason for
excluding ’orchards’ which is a compact area having fruit
trees, grown thereon in such number that they preclude it
from ’being used for any other agricultural purpose.
Further, orchards have special significance in the State.
Therefore, there is no discrimination; and since the Act has
been passed with the definite object of agrarian reforms, it
cannot be successfully challenged on the ground of violation
of Art. 14; 19 and Art. 31 of the Constitution. [346D-347C]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 1485 of 1973.
Under Art. 32 of the Constitution of India.
M. C. Chitale, Naunit Lal and Lalita Kohli, for the
petitioners.
M. K Ramamurthy and Fineet Kumar, for the respondents.
The Judgment of the Court was delivered by
GOSWAMI, J. This writ application under Article 32 of the
Constitution raises the question of the constitutional
tradition of the Jammu and Kashmir Agrarian Reforms Act,
1972 (Act of XXXVI of 1972),
341
briefly called the Act, and the rules framed thereunder.
The petitioners are land-owners in the State of Jammu and
Kashmir and their grievance is that by the impugned Act
they along with a large number of similar land-owners have
been rendered landless. They further allege
that the amount intended to be paid as compensation is
illusory and the Act is, therefore, of a confiscatory
nature. They also allege that exclusion of an ’orchard’
from the definition of ’land’ under section 2(4) of the Act
is motivated and designed in the interests of highly placed
influential persons in the State who own such orchards. By
taking an additional ground, they also aver that the Act is
not saved by the provisions of Article 31A of the
Constitution as applicable to the State of Jammu and Kashmir
since it is not a piece of legislation bearing on agrarian
reform.
The respondent has denied that above averments and other
allegations in the petition by means of an affidavit
affirmed by the Special Revenue Secretary to the Government
of Jammu and Kashmir. It is claimed that the Act is
protected by Article 31A of the Constitution and is immune
from challenge on the ground of violation of Articles 14, 19
and 31 of the Constitution. According to the respondent the
Act is passed in order to ensure better production avoiding
concentration of means of production in the hands of a few
and to annihilate the exploitation of the peasantry. With
regard to the objection regarding compensation, it is stated
that the minimum rate of compensation has been fixed and the
same is not illusory. It is further stated that the
Government is in the process of framing rules for the mode
of paying compensation and the instalments of payment of the
compensation would certainly be reasonable.
The short question that arises for consideration is whether
the Act is protected under Article 31A of the Constitution
as applicable to the State of Jammu and Kashmir providing,
as claimed by the State, for a scheme of agrarian reforms.
If the answer is in the affirmative, all objections under
Articles 14, 19 and 31 would be of no avail. This legal
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position is conceded by the learned counsel for the
petitioners and indeed is well-settled by several decisions
of this Court (See Kavalappara Kottarathit Kochuni and
Others v. The State of Madras and Others,(2) Ranjit Singh
and Others v. State of Punjab and Others;(2) State of Uttar
Pradesh v. Raja Anand Brahma Shah;(3) The Kannan Devan Hills
Produce v. The State of Kerala and Another;(4) and State of
Kerala and Another v. The Gwalior Rayon Silk Mfg. (Wvg.) Co.
Ltd. etc.).(5)
We may now, therefore, turn to the Act to determine whether
the impugned legislation can come under the canopy of
protection of Article 31A of the Constitution. The Act
itself carries the appellation "Agrarian Reforms Act.".
These words, themselves, may not be decisive in the absence
of provisions in the Act disclosing a genuine
(1) [1960] (3) S.C.R. 887 (2) [1965] (1) S.C.R. 82
(3) [1967] (1) S.C.R. 362 (4) [1972](2) S.C.C. 218
(5) AIR [1973] S.C.C. 2734
342
scheme of agrarian reform. , We will, therefore, examine the
material provisions of the Act with that end in view.
It is apparent from section 51 of the Act that the
legislature had earlier passed The Jammu and Kashmir Big
Landed Estates Abolition Act, 2007; The Jammu and Kashmir
Tenancy Act, 1980; The Jammu and Kashmir Tenancy (Stay of
Ejectment Proceedings) Act, 1966; The Jammu and Kashmir Land
Revenue Act, 1996 and The Jammu and Kashmir Consolidation of
Holdings Act, 1962. By section 51 the provisions of these
Acts in so far as they are inconsistent with the provisions
of the present Act shall cease to apply subject to the
provisos appended to the Section. The State Legislature,
therefore, did not start on a clean slate. Indeed, the
petitioners, curiously enough, make a grievance that the
State of Jammu and Kashmir was the "first State in the whole
of India which enacted drastic laws detrimental to the
interests of land-owners right from the year 1948". The
petitioners seem to attribute even oblique motive in
enacting the Act to which we shall revert hereafter at the
appropriate place.
Coming back to the provisions of the Act, the preamble shows
that the Act has to provide for comprehensive legislation
relating to land reforms in the State of Jammu and Kashmir.
The Act, although it received the assent of the Governor on
November 27, 1972, was brought into force on the first day
of May, 1973. Section 2 contains the definitions. By
section 2(2) ’ceiling area’ means the extent of land or
orchards or both measuring twelve and a half standard acres.
By section 2(4) " ’land’ means land which is occupied, or
has been let, for agricultural purposes or for purposes
subservient to agriculture, or for pasture, and includes-
(a) structures on such land used for purposes connected
with agriculture;
(b) trees standing on such land;
(c) areas covered by, or fields floating
over, water; and
(d) forest lands and wooded wastes;
but does not include-
(i) the sites of buildings in a town or
village Abadi or any land appurtenant to such
building or site;
(ii)any land which was an orchard on the
first day of September, 1971; and
(iii)any land in respect of which specific
provision has been made in Chapter 111". ,
By section 2(5) "’orchard’ means a compact area of land
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having fruit trees grown thereon or devoted to cultivation
of fruit trees in such number that they preclude, or when
fully grown would preclude, such land from being used for
any other agricultural purpose".
Chapter II provides for various restrictions on rights in
land. Section 3 with which it opens runs as follows
343
"Vesting in the State of rights of owners and
intermediaries in land not held in personal
cultivation.-Notwithstanding anything
contained in any law for the time being in
force, the right of ownership of any person
and the right of any intermediary in land not
held by him in his personal cultivation on the
first day of September, 1971, shall extinguish
and shall vest in the State with effect from
the appointed date
Provided that nothing in this section shall
affect the right of a, mortgagee without
possession, if any, on the land".
The other relevant sections in Chapter 11 are
as follows :-
Section 4. "Vesting of land in excess of
ceiling area in the State.-Notwithstanding
anything contained in any law for the time
being in force-
(a) Where any land, including that
retainable under section 53, ,held by an
individual in his personal cultivation whether
as owner or as tenant or otherwise is, along
with orchards owned by him, in excess of the
ceiling area on the 1st day of September,
1971, the excess land shall vest in the State
with effect from the appointed date subject to
the right of a mortgagee without possession,
if any, on the land;
(b) Where aggregate land, including that
retainable under section 53, held by the
members of a family, whether joi
ntly or
severally or both, in their personal cultiva-
tion as owners or as tenants or otherwise,
along with orchards owned by them, is in
excess of the ceiling area on the 1st day of
September, 1971, the excess land shall vest in
the State with effect from the appointed date,
subject to the rights of mortgagee without
possession, if any, on the land :
Provided that each such individual or each such member of
the family, as the case may be, shall have the option of
selecting, in the prescribed manner, the land he desires to
retain with himself within the limits provided- for in sub-
section (1) of section 12 :
Provided further that no land in a demarcated forest shall
be so selected."
Section 5. "Vesting of ownership rights in
land held in personal cultivation.-The land
vested in the State under section 3 shall
subject to the provisions of section 4 and to
the rights of mortgagee without possession
thereon, if any, and on payment of such levy
in full as may be prescribed, vest in
ownership rights in the person holding such
land in personal cultivation on the first day
of September, 1971 or in the
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L177Sup.CI/75
344
person claiming through him, anything
contained in any law for the time being in
force notwithstanding."
Section, 6. "Payments in lieu of acquisition.-
All lands and rights therein taken away or
abridged by sections 3, 4 and 8 shall be
deemed to have been acquired by the State with
effect from the date such land or rights are
vested in the State and payment in lieu
thereof shall be determined in accordance with
the rules made under this Act".
x x x x x x Section 7.
"Resumption.-Notwithstanding anything contain-
ed in section 3, any person whose monthly
income does not exceed Rs. 500.00P and who
was, on the first day of September, 1971, an
inhabitant of the area to which this Act
applies and was an owner of land not held by
him in his personal cultivation may
resume a
unit of land not exceeding three standard
acres for personal cultivation and for that
purpose apply to the prescribed authority, in
the prescribed manner, within a period of one
hundred and eighty days from the appointed
date. The prescribed authority shall not hold
an enquiry into the application in the
prescribed manner and pass appropriate orders
thereon
We need not quote the six provisos and the explanation to
the section. We may emphasis that section 7 appropriately
provides an incentive to personal cultivation by resumption
of land on pain of extinguishment of the rights on failure
to bring the land resumed under personal
cultivation within a specified period.
Section 8. "Consequences of failure to
bring resumed land under personal
cultivation.-
(1) Any owner who has resumed land or for
whom land has been resumed and who has entered
into possession thereof under section 7, shall
bring such land under his personal cultivation
within a period of eight months from the date
of entry into possession, failing which his
rights in such land shall, subject to the pro-
visions of sub section (2) extinguish.
(2) If the prescribed authority after
holding an enquiry in the prescribed manner
finds that the owner has failed to bring the
land under his personal cultivation within the
period mentioned in sub-section (1) it shall
declare all rights, title and interests of the
owner in such land to have extinguished and
all rights, title and interest in such land
shall vest in the State subject to the rights
of a mortgagee without possession thereof, if
any, and such land shall be disposed of in
accordance with section 10".
345
Section 10. "Disposal of surplus land.-Where
any land, vested in the State under this Act,
becomes surplus, the Government shall. be
competent to dispose it of in consideration of
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such levy and subject to such terms and
conditions and in such manner As may be pres-
cribed, anything contained in any law for the
time being in force notwithstanding".
Section 11 provides for restriction on future acquisitions,
tenancies and transfers. Section 12 deals with land held in
excess of ceiling. Section 13 provides for disposal of
excess land acquired under section
12. Section 15 provides for prohibition on transfer of
land. Chapter III deals with evacuees’ lands with which we
are not concerned.
Chapter :IV deals with orchards. By section 25 there is a
levy of annual tax in respect of such portion of an orchard
as is, on the commencement of this Act or shall at any time
thereafter be, in excess of 12 1/2 standard acres. A
machinery is provided under the Act for collection of taxes
and appointment of Assessing Officers in accordance with the
prescribed rules. Thus although orchards on the specified
date, unlike land, do not vest in the State, the excess area
suffers a levy of annual tax. The very definition of
orchard permits this special treatment in ’the case of
orchards in excess of the ceiling area.
Chapter V deals with jurisdiction and procedure and, Chapter
VI provides for penalties.
Section 46 provides for excluding certain specified lands
from operation of the Act. By section 47 the provisions of
this Act shall have an overriding effect on other laws or
any custom or usage or contract, etc. By section 48 power
is reserved to the Government to issue instructions.
Section 49 provides for a summary procedure for all
proceedings and enquiries under the Act or the rules.
Section 50 provides for the rule making power. We have
already noticed section 51. By section 52 all applications,
suits and proceedings pending before any Revenue Officer,
Civil or Revenue Court, etc. shall abate subject to the
proviso appended to the section. By section 54, which is
the last section, transfers of lands or orchards to defeat
the provisions of the Act shall not be recognised and shall
be deemed to be owned by such persons for purposes of
calculating the area retainable under the Act by them.
The golden web, throughout the warp and woof of the Act, is
the feature of personal cultivation of the land. The
expression ’personal cultivation’ which runs through
sections 3,4,5,7 and 8 is defined with care under section
2(7) in a detailed manner with a proviso and six
explanations.
From a review of the foregoing provisions it is obvious that
the Act contains a clear programme of agrarian reforms in
taking stock of the land in the State which is not in
personal cultivation (section 3)
346
and which though in personal cultivation is in excess of the
ceiling area (section 4). A ceiling area is fixed for land
or orchards or both measuring 12 1/2 standard acres. After
the land vests in the State, in accordance with the
provisions of the Act, a provision is made for disposal of
the surplus land in accordance with the rules.
The main focus of the Act is to see that the tillers, who
form the back-bone of the agricultural economy, are provided
with land for the purpose of personal cultivation subject to
the ceiling provision even in their case. The Act makes
effective provisions for creating a granary of land at the
disposal of the State for equitable distribution, subject to
the limit, amongst the tillers of the soil and even the
owners who would make ’personal cultivation’ of the same
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within the meaning of the Act. In the nature of things it
is imperative that a ceiling area has to be fixed and those
who have so far enjoyed land in large tracts mostly without
personally, cultivating the same, are required to share with
others who have no land of their own but are genuine tillers
of the soil. Even so, no one is allowed to own more than
the ceiling area.
In fixing the ceiling area again land and orchards are both
included.
We do not see any justification for the comment, adverted to
above, that there is any discrimination in favour of the
orchard-owners in not including land which was an orchard on
the first day of September, 1971 within the definition of
land under the Act since ,orchard’ is reckoned along with
the ’land’ for the purpose of determination of the ceiling
area under the Act. Further Chapter IV deals specifically
with orchards and under section 25 a levy of annual tax is
imposed even in the case of orchards in excess of 12 1/2
standard acres. The respective definitions of ’land’ and
’orchard’ under the Act clearly permit of some special
treatment to orchards in view of the scheme of the entire
Act. Since hand under the Act has an intimate nexus with
purposes subservient to agriculture or pasture, there is
reason for excluding ’orchard’ which is a compact area
having fruit trees grown thereon in such number that they
preclude it from being used for any other agricultural
purpose. It is common knowledge that orchards have special
significance in the State with which we are concerned. We
also do not fail to notice that under section 4(2) of the
Big Landed Estates Abolition Act (Act 17 of 2007) (1950
A.D.) extinction of the right of ownership under section
4(1) of that Act bad not been made applicable to orchards.
No motive can be attributed to the legislature in the choice
of legislation within its constitutional competence. We,
therefore, do not find any merit whatsoever in the objection
on the score of motive, or that there is any unreasonable
discrimination in favour of the orchard-owners as such.
On the other hand, the predominant object underlying the
provisions of the Act is agrarian reforms. Agrarian reforms
naturally cannot take the same pattern throughout the
country. Besides the availability of land for the purpose,
limited in scope in the nature of
347
things, the scheme has to fit in with the local conditions,
variability of climate, rain-fall, peculiarity of terrain,
suitability and profitability of multiple crop patterns,
vulnerability to floods and so many other factors in
formulating a scheme of agrarian reforms suitable to a
particular State. While a modest beginning is made with the
land at disposal, modern methods of mechanisation and other
improvements can be resorted to with the help of the State
machinery available to the tillers of the soil. Such
details can be worked out gradually by various processes in
the course of implementation of the provisions of the Act
and the rules which definitely provide sufficient
elasticity. We are of opinion that the impugned Act has
been passed with the definite object of agrarian reforms and
cannot be successfully challenged on the score of violation
of Article 14, Article 19 and Article 31 in view of the
provisions of Article 31A. The application, therefore,
fails and is dismissed. The parties will pay and bear their
own costs.
S.C. Petition dismissed.
348
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