Fida Ali & Ors Vs. State of Jammu and
Kashmir  INSC 109 (30 April 1974)
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)
Jammu and Kashmir Agrarian Reforms Act,
1972-Whether the Act is protected by Art. 31A of the Constitution.
In this Writ petition, the constitutional
validity of the Jammu and Kashmir Agrarian Reforms Act. 1972 and the rules
framed there under 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
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
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]
ORIGINAL JURISDICTION: Writ Petition No. 1485
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
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 installments 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
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.
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)  (3)
S.C.R. 887 (2)  (1) S.C.R. 82 (3)  (1) S.C.R. 362 (4) (2)
S.C.C. 218 (5) AIR  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
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
(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 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
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 cultivation 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 subsection (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
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
x x x x x x Section 7.
contained 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
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 provisions of sub section
(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 such levy
and subject to such terms and conditions and in such manner As may be prescribed,
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
12. Section 15 provides for prohibition on
transfer of land. Chapter III deals with evacuees' lands with which we are not
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
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
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 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.