Prem Nath Raina & Ors Vs. State of
Jammu and Kashmir & Ors [1983] INSC 90 (4 August 1983)
CHANDRACHUD, Y.V. ((CJ) 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 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.
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 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 900 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 one 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 tenant 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 protection 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 State
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 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 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
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 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.
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