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PETITIONER: PREM NATH RAINA AND OTHERS

       Vs.

RESPONDENT: STATE OF JAMMU AND KASHMIR AND OTHERS

DATE OF JUDGMENT04/08/1983

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S. MUKHARJI, SABYASACHI (J)

CITATION:  1983 AIR  920            1983 SCR  (3) 536  1983 SCC  (4) 616        1983 SCALE  (2)58

ACT:      Jammu and  Kashmir Agrarian  Reforms Act,  17 of 1976-a measure of  agrarian reform  - Saved  by  Article  31A  from challenge under Articles 14, 19 and 31 of the Constitution.

HEADNOTE:      The petitioners  challenged the constitutional validity of Jammu and Kashmir Agrarian Reforms Act, 17 of 1976 on the ground that  the Act  violated Articles 14, 19 and 31 of the Constitution. The  petitioners contended  that  as  the  Act contained certain  provisions which  were not  co-related to agrarian welfare,  the Act could not be said to be a measure of agrarian reform and therefore not saved by Article 31A of the Constitution.      Dismissing the petitions, ^      HELD: The  Act is  a measure  of agrarian reform and is saved by  Art. 31A  from the challenge under Arts. 14, 19 or 31 of the Constitution. [541 D]      The question  as to  whether any  particular Act  is  a measure of  agrarian reform  has to be decided by looking at the dominant  purpose of  that Act.  In the instant case the dominant purpose of the statute is to bring about a just and equitable redistribution  of lands,  which  is  achieved  by making the tiller of the soil the owner of the land which he cultivates and  by imposing  a ceiling  on the extent of the land which any person, whether landlord or tenant, can hold. The matters  which are  dealt with  by the Act are essential steps in  any well  conceived scheme of agrarian reform. The decision in Kochuni was treated in Ranjit Singh as a special case which cannot apply to cases where the general scheme of legislation is  definitely agrarian  reform  and  under  its provisions, something  ancillary thereto in the interests of rural economy  has to  be under taken to give full effect to those reforms. [541 A-D, 541 D]      Ranjit Singh v. State of Punjab, [1965] 1 S.C.R. 82 and Kavalappara Rottarathil  Kochuni & Ors. v. State of Madras & Ors., [1960] 3 S.C.R. 887, referred to.      The circumstance  that the  Act is  made applicable  to agricultural lands  situated  within  the  limits  of  local authorities will  not affect  its character  as a measure of

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agrarian reform. If any land situated in a developed area is used predominantly  for the  purpose of  agriculture, it  is open to the legislature to 537 include that  land in  a scheme  of agrarian reform so as to make the  tiller of  that land  its owner.  The hypothetical possibility  that   after  becoming   statutory  owners   of agricultural lands situated in developed areas on payment of a paltry  price, the tillers will part with those lands at a high price  which lands  in developed areas like urban areas fetch, cannot  affect the  basic position  that the  Act  is conceived in  the larger  interest of  agrarian reform.  The payment of  a larger  compensation to  land-holders under  a land reform law than what would be payable under an Act like the Urban  Ceiling Act  does not lead to the conclusion that the former is not a measure of agrarian reform. [543 A-F]      Section  7(2)(b)   of  the  Act  creates  an  anomalous situation, especially  in the  context of  the definition of ’personal cultivation’ in section 2(12) of the Act. If it is permissible to  cultivate a  land through  another person as specified in  clauses (b)  to (g) of section 2(12), there is no reason  why residence  in the  village where  the land is situated or in an adjoining village should be compulsory for all persons,  even for  minors, widows,  insane persons  and persons in  detention. The exception made by the legislature in favour  of the  members of  defence forces  ought  to  be extended to  these other  persons also.  The exclusion  of a constitutional challenge under Articles, 14, 19 and 31 which is provided  for by  Article 31A  does not justify in equity the irrational violation or these articles. [543 G, 544 B-D]      Waman Rao  & Ors.  v. Union  of India  & Ors.  [1981] 2 S.C.R. 1, referred to.

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition Nos. 4195 and 4445 of 1978,  8831, 8942  of 1981,  342-717, 803-804, 1005-1242, 6501-6746, 2860-3049, 3169-71, 3413-63, 7133-35 of 1982.      V.M. Turkunde  and Naunit  Lal for  the petitioners  in W.P. Nos. 4196/82,  6501-6746,  2860-3049,  342-717/82,  and 8831/81.      S.S. Javali,  B.P.  Singh  and  Raniit  Kumar  for  the petitioners in W.P. Nos. 4445/78, 8942, 1005-1242, 3413-3463 and 7133-35/82.      Sanjay Kaul and Ashok Panda for the petitioners in W.P. No. 3169/82.      L.N. Sinha,  Attorney General  and R.K.  Garg  for  the respondent in W.P. Nos. 4195/82 and 4445/78.      Altaf Ahmed for the respondents in all other matters.      The Judgment of the Court was delivered by      CHANDRACHUD, CJ;  By these  Writ Petitions  filed under Article 32  of the  Constitution, the  petitioners challenge the constitutional 538 validity of  the Jammu & Kashmir Agrarian Reforms Act, 17 of 1976, on  the ground that the Act violates the provisions of Articles 14,  19 and  31 of the Constitution. This challenge is met by the State of Jammu & Kashmir with the short answer that the  impugned Act  being a  measure of agrarian reform, Article 31A of the Constitution precludes a challenge to its validity on  the ground  that  it  violates  the  provisions contained in Articles 14,19 and 31.      The petitioners  are mostly  small land-holders  owning agricultural lands  in the  State of  Jammu &  Kashmir.  The

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Government  of  Jammu  &  Kashmir  introduced  several  land reforms in  the State,  beginning with  Tenancy Act  VII  of 1948. Jagirs  and Muafis  were abolished under that Act as a result of  which, approximately 9()00 owners of agricultural lands lost  their proprietary  interest in  about  4.5  lakh acres of  land. The  State Legislature thereafter passed the Tenancy (Amendment) Act VII of 1948, the Tenancy (Amendment) Act of  1950, the  Big Landed Estates Abolition Act of 1950, the Tenancy (Amendment) Arts of 1956, 1962 and 1965, the J & K Tenancy  (Stay of  Ejectment) Proceedings  Act  1966,  the Agrarian Reforms  Act of  1972 and finally the impugned Act, 17 of  1976. The  last named  Act received the assent of the Governor on August 21, 1976. It was amended by the Amendment Act of  1978 which  received the  assent of  the Governor on April 7, 1978.      We will  presently explain  in brief  the nature of the provisions of the impugned Act but, before we do so, it will be useful  to acquaint  oneself with the various steps which the Government  of Jammu  & Kashmir took in the direction of land reforms,  by passing the Acts to which we have referred earlier. After  abolishing the  Jagirs  and  Muafis  by  the Tenancy Act  of 1948,  restrictions were placed on the right of  the  landlord  to  eject  the  tenant,  by  the  Tenancy (Amendment) Act  of 1948,  The landlord  was, however, given the right to resume the land from his tentant if he required it bona  fide for personal cultivation subject to ceiling on his right  of resumption.  The Big Landed Estates Abolitions Act of  1950 was  quite a revolutionary piece of legislation in the  context of those times. A ceiling was placed by that Act on the holding of proper ties at 182 Kanals, which comes roughly to  23 acres.  The land in excess of the ceiling was expropriated without the payment of any compensation and the tiller of  the soil  became the owner of the excess land. By subsequent legislations,  tenants were  given protec tion in the  matter  of  rents,  certain  classes  of  non-occupancy tenants  came  to  be  regarded  as  protected  tenants  and landlords were given 539 a  further  opportunity  for  making  applications  for  the resumption of  land. Thousands of applications were filed by the landlords  under the provisions of the Tenancy Amendment Act of 1965 for resumption of lands from tenants but, later, further proceeding  in those  applications were  stayed. The Janki Nath  Wazir Committee  pointed out  anomalies  in  the various measures  taken by  the State  Legislature by way of the land  reforms and  it made  recommendations in  order to remove  the   inequities  from   which  the   land   reforms legislation undertaken  by the  State  suffered.  The  State Government  constituted   a  Land   Commission   under   the Chairmanship of  the then  Revenue Minister, Syed Mir Kasim, in 1963  to examine  the Wazir  Committee’s Report. In 1967, the Sate Government appointed another Commission of Inquiry, with Shri  P.B. Gajendragadkar, retired Chief Justice of the Supreme  Court,   as  its   Chairman.   The   Gajendragadkar Commission made  various recommendations by its Report dated December 1968.  It also  pointed out  the defects from which the Land  Legislation  in  the  Slate  of  Jammu  &  Kashmir suffered and  suggested ways  and means  for removing  them. This long and empirical process ultimately culminated in the enactment of  the Act  of 1976  which is  impugned in  these proceedings.      It is  impossible to accept the contention of Shri V.M. Tarkunde, who appears on be half of the petitioners, that by reason of  certain provisions  of the impugned Act which are not co-related  to agrarian  welfare, the Act cannot be said

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to be  a measure  of agrarian reform. The short title of the Act shows  that it  was  passed  in  order  to  provide  for transfer of  lands to  the tillers  of the  lands  f-or  the purpose of  better utilization  of those  lands Section 4 of the Act  provides that  all rights,  titles and interests in lands, which  were not cultivated personally in Kharif 1971, shall be  deemed to have been extinguished and shall vest in the State,  free from  all encumbrances with effect from May i, 1973.  By section  5, all  lands in excess of the ceiling area on  September 1,  1971 vested  in the  State on  May 1, 1973. Section  7 provides for the resumption of lands by the ex-landlords for bonafide personal cultivation, subject G to the  conditions  mentioned  in  section  7  (2).  Section  9 provides for  payment of  rent by the tillers of the soil to the State  for lands which have vested in the State. Section 11 provides for payment of the amount due on the outstanding mortgages on  lands. Section  11 provided  that lands  which vest in  the State under the impugned Act shall be deemed to have been  acquired by the State, for which payment shall be determined and made in accordance with the 540 provisions  of   Schedule  III.   Section   13   lays   down restrictions on  the utilization  of lands  of which tillers become  owners.   Section  14  prescribes  for  the  optimum retainable area  of the  land, section  15  deals  with  the manner of disposal of surplus land, while section 17 imposes a prohibition  on the  transfer of lands. Chapter III of the Act deals  with the jurisdiction of several revenue officers and Tribunals  appointed under  the Act  and lays  down  the procedure which  they are  required to  follow.  Chapter  IV contains supplemental  provisions. Chapter  V  provides  for penalties for the infringement of the provisions of the Act, while Chapter VI provides for certain miscellaneous matters. Schedule III defines ’compensation’ to mean the sum of money payable for  land  at  the  market  value,  while  the  word ’amount’ is defined to mean the sum of money payable in lieu of extinguishment  of rights in land at rates other than the market  rate.   The   maximum   amount   payable   for   the extinguishment of  the rights of the landlords is Rupees one thousand per  kanal. These  and other  cognate matters which are dealt  with by  the Act are essential steps in any well- conceived scheme of agrarian reform.      It is urged by learned counsel led by Shri Tarkunde and by Shri  Sanjay Kaul  who appeared  in person,  that certain provisions of the impugned Act have no bearing upon agrarian reform and  those provisions  cannot have  the protection of Article 31A.  Section 7  of the  Act is  said to be one such provision. It provides by sub-section (1) for the resumption of lands  for bona fide personal cultivation by ex-landlords but by  sub-section (2) it imposes certain conditions on the right of  resumption. One  of those  conditions is  that the applicant for resumption, other than a member of the Defence Forces, must,  within six  months of the commencement of the Act, take  up normal  residence in  the village in which the land sought  to be  resumed is  situated or  in an adjoining village, for the purpose of cultivating the land personally. The other  provision of  the Act on which special stress was laid by  counsel for the petitioners is the one contained in clause (f)  of section 7(2) which lays down certain criteria for determining  the extent  of land  which may  be resumed. Stated briefly,  where a person was entitled to rent in kind from the  tiller during  kharif 1971,  the  extent  of  land resumable by  such person has to bear the same proportion to the total  land comprised in the tenancy as the rent in kind bears to  the total produce; and where a person was entitled

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to rent  in cash  during Kharif  1971, the  extent  of  land resumable by  him has  to be regulated by the extent of rent in kind to which such rent in cash can be 541 commuted in  accordance with  the provisions of sub-sections (3) and  (8) of  section 9. We are unable to hold that these and connected  provisions of  the impugned Act show that the Act is  not a measure of agrarian reform. The question as to whether any  particular Act  is a measure of agrarian reform has to be decided by looking at the dominant purpose of that Act. In Ranjit Singh v. State of Pnnjab(1), it was held on a review of  authorities that a large and liberal meaning must be given  to the  several expressions like ’estate’, ’rights in an  estate’ and  extinguishment and modification’ of such rights  which   occur  in   Article  31A.  The  decision  in Kochuni(1)  to   which  our  attention  was  drawn  by  Shri Tarkunde, was  treated in  Ranjit Singh  as a  special  case which cannot  apply to  cases where  the general  scheme  of legislation is  definitely agrarian  reform  and  under  its provisions, something  ancillary thereto in the interests of rural economy  has to  be undertaken  to give full effect to those reforms.  In our  case the  dominant  purpose  of  the statute  is   to  bring   about   a   just   and   equitable redistribution of  lands, which  is achieved  by making  the tiller of the soil the owner of the land which he cultivates and by  imposing a  ceiling on  the extent of the land which any  person,   whether  land-  lord  or  tenant,  can  hold. Considering the scheme and purpose of the Act, we cannot but hold that  the Act  is a  measure of  agrarian reform and is saved by  Article 31A  from the challenge under Articles 14, 19 or  31 of  the Constitution. Article 31 has been repealed by the 44th Amendment with effect from June 20, 1979 and for future purposes  it ceases  to have  relevance. Reduced to a constitutional premise,  the argument  of the petitioners is that the particular provisions of the Act are discriminatory and are  therefore  violative  of  Article  14;  that  those provisions  impose   unreasonable  restrictions   on   their fundamental rights  and are  therefore violative  of article 19. This  argument is  not open to them by reason of article 31A.      It may  be mentioned that The Constitution (Application to Jammu  and Kashmir)  order, 1954, which was passed by the President of  India in  exercise of his powers under article 370 of the Constitution, makes article 31A applicable to the State of  Jammu and  Kashmir with  the modification that the proviso to clause (1) of that article stands deleted and for sub-clause (a)  of clause  (2) the  following sub-clause  is substituted: 542           "(a)  "estate"   shall  mean  land  which  is      occupied or has been let for agricultural purposes      or for purposes subservient to agriculture, or for      pasture, and includes-      (i)   sites of  buildings and  other structures on           such land;      (ii) trees standing on such land;      (iii) forest land and wooded waste;      (iv) area  covered  by  or  fields  floating  over water;      (v)  sites of jandars and gharats;      (vi) any  jagir, inam, muafi or mukarrari or other           similar grant, but does not include-           (i)   the site  of any  building in  any town                area  or   village  abadi  or  any  land                appurtenant  to  any  such  building  or

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              site,           (ii) any  land which  is occupied as the site                of a town or village; or           (iii) any land reserved for building purposes                in a  municipality or  notified area  or                cantonment or  town area or any area for                which  a   town   planning   scheme   is                sanctioned."      The grievance  of the  petitioners is  that not only do certain provisions  of the  Act  militate  against  agrarian reform,  but   those  provisions   will  involve  the  State Government into  payment of  considerable ’amounts’ to land- holders for  the extinction and acquisition of their rights, which would  be far greater than the amounts which the State Government would  be liable to pay under Acts like the Urban Land (Ceiling  and Regulation) Act, 1976. Agricultural lands which are  situated within  the limits of municipalities and Town Area Committees are also comprehend within the scope of the Act  and the  apprehension of  the petitioners  is that, after the  tillers  become  statutory  purchasers  of  those lands, they  will be free to dispose them of at urban prices which have  escalated sky-high.  Another facet  of the  same argument 543 is that  no agrarian  reform is  involved  in  applying  the impugned statute to lands situated in urban agglomerations.      These arguments  are  not  relevant  for  deciding  the question as  to whether  the dominant  purpose of the Act is agrarian reform.  The payment  of a  larger compensation  to land-holders under  a Land  Reform Law  than what  would  be payable under  an Act  like the  Urban Ceiling  Act does not lead to  the conclusion  that the former is not a measure of agrarian  reform   The  extent   and  mode   of  payment  of compensation for  the extinction of a land-holder’s right is a matter  for the legislature to decide and the circumstance that the compensation or the amount fixed by the legislature in any  given case  is excessive, will not make the law any- the-less a  measure of  agrarian reform. In the same manner, the  circumstance   that  the   impugned  statute   is  made applicable to  agricultural lands situated within the limits of Local  Authorities will  not affect  its character  as  a measure of  agrarian reform.  If  any  land  situated  in  a developed area  is used  predominantly for  the  purpose  of agriculture, it  is open  to the legislature to include that land in a scheme of agrarian reform so as to make the tiller of that  land its  owner. The  apprehension expressed by the petitioners  that,   after  becoming   statutory  owners  of agricultural lands situated in developed areas on payment of a paltry  price, the tillers will part with those lands at a high price  which lands  in developed areas like urban areas fetch,  is  hypothetical  though  not  unreal.  Not  unreal, because the  temptation to  trade in  immovable property  is common to  agriculturists and  non-agriculturists alike. But the hypothetical possibility that the lands will be disposed of by  to-day’s tillers  to-morrow, cannot  affect the basic position that the Act is conceived in the larger interest of agrarian  reform.   Besides,   section   13   which   places restriction  on  utilisation  of  lands,  section  17  which imposes restrictions  to a limited extent on the transfer of such lands  and section 14 which prescribes the optimum land which can  be retained  even  by  an  erstwhile  tenant  are effective deterrents  against  profit-oriented  disposal  of high-priced lands.      Before parting with this case, we would like to observe that section  7(2) (b)  of  the  Act  creates  an  anomalous

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situation, especially  in the  context of  the definition of ’personal cultivation’  in section  2(12) of the Act. One of the conditions imposed by section 7(2) (b) on the right of a land-holder to resume land is that, unless he is a member of the defence forces, he must take his residence in the 544 village in  which the  land is  situated or  in an adjoining village. "Personal  cultivation" is defined in section 2(12) to mean  cultivation by  any member  of one’s family or by a khana-nishin daughter  or a  khana-damad or  a parent of the person or by other relations like the son, brother or sister who are  specified in  the various clauses of section 2(12). Under clause  (g) of  section 2(12),  a land-holder who is a minor, insane, physically disabled, incapacitated by old age or infirmity,  a widow or a person in detention or in person can cultivate  the land  through a servant or hired labourer under the  personal supervision  of his  or her  guardian or agent. If  it is  permissible to  cultivate a  land  through another person as specified in clauses (b) to (g) of section 2(12), it  is difficult  to understand  why residence in the village where  the land  is  situated  or  in  an  adjoining village should  be compulsory  for  all  persons,  even  for minors, widows, insane persons and persons in detention. The exception made  by the  legislature in favour of the members of defence  forces ought  to  be  extended  to  these  other persons also,  The exclusion  of a  constitutional challenge under Articles  14, 19  and 31  which  is  provided  for  by Article 31A  does  not  justify  in  equity  the  irrational violation of these articles. This Court did observe in Waman Rao(l) that: "It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally" but  the legislature  has to  take care to see that even  marginal  and  incidental  inequalities  are  not created without  rhyme or  reason. The  Government of  J & K would do  well to give fresh consideration to the provisions contained  in  section  7  (2)  and  modify  the  provisions regarding residence  in order  that  they  may  accord  with reason and  commonsense. Article  31A does  not  frown  upon reason and commonsense      For  these   reasons,  we   uphold  the  constitutional validity of the Jammu and Kashmir Agrarian Reforms Act, 1976 and dismiss  these petitions.  There will  be no order as to costs. H.S.K.                                    Petition dismissed 545