MAGHAR SINGH Vs. PRINCIPAL SECRETARY, J&K GOVT

JUDGEMENT

(1.) THIS judgment shall dispose of two appeals -Civil First Appeal No. 29 of 2008 from the judgment and decree of Kilam J. dated 11th Magh, 2008 and Civil First Appeal No,.4 of 2009 from the judgment and decree of the District, Judge, Kashmir, elated 23rd Magh, 2008. In the suit before the learned Single Judge of this Court Maghar Singh, appellant, prayed for a declaration that the Jammu and Kashmir Big Landed Estates (Abolition Act, 2007 is ultra vires of the powers of Shree Yuvaraj and therefore in spite of the passage of this Act the plaintiff continues to be the lawful owner of 811 kanals of land situate in villages Kadyal and Kotli Arjansingh, Tehsil Ranbirsinghpura, District Jammu. In the suit before the learned District Judge which was instituted by Badri Nath Munshi and another on their own behalf and on behalf of the Jammu and Kashmir Agricultural Association the appellants, sought the declaration that the Jammu and Kashmir Big Landed Estates (Abolition) Act, 2007, was invalid and the appellants and other landowners (members of the Jammu and Kashmir Agricultural Association) in the State are and shall continue to be in peaceful possession and enjoyment of their lands of which they were admittedly owners in possession prior to the enforcement of the Act in the State without any limitation and restrictions imposed by the provisions of the Act. The declarations were refused, the Act was held intra vires and both the suits were dismissed.

(2.) IN both the appeals the point for determina ­tion is whether the Jammu and Kashmir Big Landed Estates (Abolition) Act, 2007, is ultra vires of Shree Yuvaraj Karansingh who has made that Act in exercise of the powers vested in him tinder section 5 of the Jammu and Kashmir Constitution Act, 1996, read with the Proclamation issued by His Highness the Maharaja of Jammu and Kashmir published in an extraordinary issue of the Government Gazette dated 7th Har, 2006. Elaborate arguments have been addressed to us by the learned counsel for the parties. Section 4 of the Jammu and Kashmir Big Landed Estates (Abolition) Act, 2007, runs as follows: -

(3.) (a) In regard to the first point that His Highness the Maharaja was not an absolute sovereign it is urged by the learned counsel for the appellants that before the partition he was under the paramountcy of the British Crown and after he executed the Instrument of Accession in favour of the Dominion of India on 26th October, 1947, he surrendered part of his sovereignty to the Dominion of India and therefore was a limited subordinate sovereign and consequently he could not delegate his legislative authority to Shree Yuvaraj. In order to appreciate the position of His Highness it would be necessary to give a short background of the constitutional relationship that existed between the Jammu and Kashmir State and the British Crown before the partition of India, and how it was affected by the Indian Independence Act of 1947 and by the subsequent execution of the Instru ­ment of Accession by His Highness on 26th October, 1947. Previous to the partition there was no doubt that the Ruler of the Jammu and Kashmir State was under the suzerainty of the British Crown inasmuch as foreign relations were under the exclusive control of the Crown Representative. But in so far as the internal sovereignty of the Ruler was concerned it was absolutely unlimited and there were no fetters on it. In this connection it would be relevant to reproduce sections 4 and 5 of the Jammu and Kashmir Constitu ­tion Act, 1996, as they stood before the Act was amended in November 1951: -