ition 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
VM Turkunde and Naunit Lal for the petitioners in WP Nos
419682 6501 6746 2860 3049 342 71782 and 883181
SS Javali BP Singh and Raniit Kumar for the petitioners in WP Nos
444578 8942 1005 1242 3413 3463 and 7133 3582
Sanjay Kaul and Ashok Panda for the petitioners in WP No 316982
LN Sinha Attorney General and RK Garg for the respondent in WP Nos 419582 and 444578
Altaf Ahmed for the respondents in all other matters
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 1419 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 45 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 PB 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 VM 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 72 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 vs State of Pnnjab1 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 Kochuni1 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 72 b of the Act creates an anomalous situation especially in the context of the definition of personal cultivation  in section 212 of the Act
One of the conditions imposed by section 72 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 212 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 212
Under clause g of section 212 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 212 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 Raol 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


Summary:
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 article 31A from the challenge under articles 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 vs State of Punjab  and Kavalappara Rottarathil Kochuni  Ors
vs State of Madras  Ors  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 72b of the Act creates an anomalous situation especially in the context of the definition of personal cultivation  in section 212 of the Act
If it is permissible to cultivate a land through another person as specified in clauses b to g of section 212 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
vs Union of India  Ors
  referred to