.340 FIDA ALI AND OTHERS v. STATE OF JAMMU AND KASHMIR April 30, 1974 {A. N. RAY, C.J., K. K. MATHEW, A. ALAGIRISWAMI, P. K. GOSWAMI AND R. S. SARKARIA, JJ.j Jamtnu and Kasl1111ir Agrarian Rejornu Act, 1972-Whether tile Act is pro- Jccted by Art. 3 lA of the Constitution..
In this \Vrit petition, the constitutional valid{ty of the Jammu and Kashmir Agrarian Reforms Act. 1972 and the rules framed thereunder has been chal- 'lenged. The short question for determination is whether the Act is protected under Art. 31A of the Constitution as applicable to the State of Jarnmu and Kashmir, providing for a scheme of agrarian reforms.
c According to the petitioners, who are landowners in the State of Jam mu 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. 3 lA 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
1in pcrsona:l cultivation is in excess .of the ceiling area of 12~- acres. The main focus of the Act i~ 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 'person::i.l cultiva- tion' of the same within the n1eaning 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 areas_ land and orchards are buth included and the definitions of 'land' and 'orchard' under the Act clearly permit of some special treatment to orchards in view of schen1e 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 spe- cial significance in the State. Therefore. there is no discrimination; and since the Act has been passed with the definite object of agrarian reforms, it C<\nnot be successfully chalJenged on the J?;round of violation of Art. 14; 19 and Art. 31 -Of the Constituti0n.
[346D-347C] O><IGINAL JURISDICTION : Writ Petition No. 1485 o~ 1973. Under Art. 32 of the Constitution c~ India. M. C. Chitale, Naunit Lal and Lalita Kohli, for the petitioners. M. K Ramamurthy and Vineet Kumar, for the respondents.
The Judgment of the Court was delivered by GoswAMI, J. This writ application under Article 32 of the Consti- tution raises the question of the constitutional tradition of the J ammu and Kashmir Agrarian Reforms Act, 1972 (Act of XXXVI of 1972), r
c FIDA ALI v. J & K STATE (Goswami, J.) briefly called the Act, and the rules framed thereunder. The peti· tioners are land-owners in the State of J ammu 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 illus0ry and the Act is, therefore, of a confiscatc~y nature. They also illlege that exclusion of an 'orchard' from the definition of 'land' under sec- tion 2 ( 4) of the Act is motivated and designed in the interests of highly placed intluential persons in the State who ciwn such orchards. By taking an additional ground, they also aver that the Act is not saved by the provisions of Article 3 lA of the Constitution as applicable to the State of J ammu and Kashmir since it is not a piece of legislation bearing on agrarian reform.
The respondent bas denied that above averments and other alle- gations 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 Ccnstitution and is immune from challenge on the ground of violation of Articles 14, I 9 and 31 of the Constitution. According to the respondent the Act is passed in c~der to ensure better production avoiding concentra- tion of means of production in the hands of a few and to annihilate the exploitation of the peasantry. With regard to the objection regard- ing 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 pay- ing 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 31 A of the Constitution as applicable to the State of J ammu 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 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 ana Others v. The State of Madras and Others;(') Ranjit
Singh and Others v. State of Punjab and Others;(') State of Uttar Pradesh v. Raja Anand Brahma Shah-(') The Kc/ionan Devan Hills Produce v. The State of Kera/a and An· o~her;( ) and State of Kera/a and Another v. The Gwalior Rayon
Szlk Mfg. (Wvg.) Co. Ltd. etc.).(') We may now, therefore, turn to the Act to determine whether the im~ugned legislation ca~ come under the canopy of protection of Article. 31 A of the Constitution. The Act itself carries the appellation "A!p'~na'.1 Reforms Act.".
These words, themselves, may not be decisive m the absence of provisions in the Act disclosing a genuine Ol [I960J (3) s.c.R. 887 (3) [1967] (1) S.C.R. 362 (5) AIR [1973] S.C.C. 2734
(2) [1965] (I) S.C.R. 82 (4) [1972](2) s.c.c. 218 (1975] 1 S.C.R. 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 legislatnre 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 J ammu and Kashmir was the "first State in the whole of India which enacted drastic Jaws 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 Kashmi.r. Tlie 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 III". c By section 2(5) "'orchard' means a compact area of 'and having fruit trees grown thereon or devoted to cultivation of fruit trees in such number that t;hey preclude, or when fully grown would preciude, such land from bemg 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 :- c FIDA ALI v. J & K STATE (Goswami, /.) "Vesting in the State of rights of owners and interme-
diaries in land not held in personal cu!tivation.-Nothwitru- standing 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 perso~al cultivation on the first day of September, 1971, shall extm- guish and shall vest in the State with effect from the appoint- ed 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 II 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 other- wise is, along with orchards owned by him, in ex- cess of the ceiling area on the !st 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
jointly 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 !st 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 cu!tivation.-The land vested in the State
~nder section 3 sh~ll subject to the provisions of sec- t~on 4 and to .the ngh's of mortgagee without posses- s10n thereon, 1f any, and on payment of such levy in full as may be pr~scribed, vest in ownership rights
'? the person holdmg such land in personal cultiva- tion on the first day of September, 1971 or in the 4-L! 77Sup.Cl/75 [1975] l s.c.R.· person claiming through him, an)thing contained in
any Jaw 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 be~n· 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 inh~bitant of the area
to which this Act applies and was an owner of land not held by him in his personal cultivation may re- sume 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 authQ- rity shall n~t hold an enquiry into the application fu
tbo prescribed manner and pass appropriate orders thereon We need not quote the six provisos and the explanation to the section. We may empaasise that section 7 appropriately provides an incentive to personal cultivation by resumption of land on pain of extinguish- ment 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:- (!) An.y 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 fa such· land to have extinguished and all rights, title and interest in su:h land shall vest in the State subject
to the rights of a mortgagee without possession there- · of, if any, and such land sha]] be disposed of in accordance with section 10". c u c .F FIDA AU v. J & K STATE (Goswami, J.)
Section JO. "Disposal of surplus land.-Where any land, vest- ed in the State under this Act,. becomes surplus, the G;ivernment shall be competent to dispose it of in consideration of such levy and subject to such terms
ar.J c:> .. 1itions and in such manner as may be pres- cribed, anything contained in any law· for the time being in for·:e no~withstanding". Section 11 provides foi. 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. sectiqn 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 portio.n of an orchard as is, on the commencement of this Act or shall at any time thereafter be, in exces.s of 12! standard acres. A machinery is provided under. the Act for collection of taxes and appointment of Assessing Officers in accord- ance 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 Jaws or any custom !Jr usage or con- tract; etc. By section 48 power is reserved to .the Goverrurient 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 sec-
tion 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 5_4, which. is the last section, transfers of lands or orchards to defeat the pro- visions 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 ,zolden web, throughout the· warp and woof of the Act, is the Ie-atu,re 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 " review of the foregci'ng provisions it is obvious that the Act contains a clear pro'!Tamme of agrarian reforms in taking stock of tlie J.and in the State which is not in personal cultivation (section 3) and which though in personal cultivation is in excess of the ceiling area (section 4). A ceiling area is fixed for land or orcl':ards or both measuring 12t standard acres.
After the land vests in the State, in accordance with the provisions of the Act, a provision is made for dis- posal 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 !arid for the purpose of personal cultivation subject to the ceiling provision even in their case. The Act makes effective provisions for creating a gra- nary 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 mean- ing 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 s·ime, are required to share with others who have no land of their own but are genuine til- lers 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 inclu- ded. We do not see any justification for the comment, adverted to above, that there is any discrimination in favour of the orchard-owners c
in not including land which was an orchard on the first day of Sep- tember, 1971 within the definition of land under the Act since 'orchard' is reckoned along with the 'land' for the purpose of determi- !l'atfon 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 12t 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 rand 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 mchards have special significance in the State witt1 which we arc 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 AD.) extinction of the right of ownership under section 4 (1 ) of that Act had not been made applicable to orchards. No motive can be attri- buled to the legislature in the choice of legislation within its consti- !utior1al competence. We, therefore, do not find any merit whatso- ever 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 pro- visions of the Act is agrarian reforms. Agrarian reforms
n_aturally cannot take the same pattern throughout the country. Besides the avaliability of land for the purpose, limited in scope in the nature of c FIDA ALI v. J & K STATE (Goswt1J11i, J.)
347. things, the scheme has to fit in \Vith. the local conditions, variability of climate, rain-fall, peculiarity of terrain, suitability and profitability of multiple crop vatterns, vulnerability to floods and so many other fac- tors in formulating a scheme of agrarian reforlllS suita.ble to a parti- cular State. While a modest beginning b made with the land at dis- · posal, modern methods of mechanisation and other improvements can be <'sorted to with the help of the State nuchinery availabk to the tiJlcrs 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 o{ opinion that the impugned Act has been passed with the definite 01'-. j~ct 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 3IA. The application, therefore, fails and is dismissed. The parties will pay and bear their o_wn costs. P~itiv11 dis111iSscd.
s.c.