RAHIM Vs. AMMA BAR

JUDGEMENT

(1.) THESE cases raise a point of law of general importance: namely: - Whether the Jammu and Kashmir Agrarian Reforms Act, 1972 acts retrospectively on the pending cases? If so, what is the effect?

(2.) THE Jammu and Kashmir Agrarian Reforms Act, 1972 (shortly called, the new Act) was enacted by the State Legislature in the year 1972. It received the assent of the Governor on 27 -11 -1972 and was published in the Govt. Gazette on 9 -12 -1972. Under section 1(3) it was to "come into force with effect from such date as the Government may appoint by a notification in the Government Gazette." The new Act, as originally enacted, admittedly came into force on 1st of May, 1973. Soon after it was amended retrospectively by Ordinances Nos. 1 and 5 of 1973. The operative provisions of the new Act were to take effect from a date to be specified by the Government expressively described as appointed date, in the Act. By notification SRO 183 dated 23 -4 -1973, the Government specified 1 -5 -1973 as the date from which these provisions would become effective.

(3.) ON the terms of its preamble, the new Act was designed to "provide for comprehensive legislation regarding land reforms in the State of Jammu and Kashmir." The objects of the land reforms contemplated by the new Act mainly appear to be; (a) to abolish the system of absentee landlordism including the allied forms of intermediaries; (b) to make the tiller the owner; (c) to set a ceiling on land -holdings. To put life into these objectives a legislative scheme was formulated and fashioned into the new Act. By virtue of this scheme, new concepts of personal cultivation, ceiling area and family were introduced and definite meaning was given to these expressions in the new Act. The Legislature provided that all rights and title in land not held in personal cultivation on 1st day of September 1971 (hereinafter called, the material date) shall extinguish and vest in the State. The only exception provided was that in favour of a mortgagee without possession whose rights in the mortgaged land were kept intact. Even as regards lands held in personal cultivation, whether in ownership right, tenancy right or otherwise, it was provided that if the lands so held alongwith orchards owned by an individual and, where such individual was a member of a family, by all the members of the family, jointly or severally, exceeded the ceiling area on the material date, the excess land shall vest in the State. For this purpose the expressions land and orchardâ„¢ were defined in the Act. The landowners who exceeded the ceiling area were allowed to select in the prescribed manner the land they desired to retain for themselves within the ceiling limit. Subject to the rights of mortgagee without possession, lands within ceiling area were vested in ownership right in the individuals or families, as the case might be, holding the same in personal cultivation on the material date. Lands which became surplus, were to be disposed of by the Government in the prescribed manner. Provision was, however, made for resumption of land by landowners not in personal cultivation on the material date, though only under certain conditions and upto a limited extent. It was enacted that such a land -owner could resume a unit of land not exceeding three standard acres for personal cultivation on condition that his monthly income including that of other members of the family, if any, to which he belonged, did not exceed Rs. 500/ - per month and that he was a inhabitant of the area to which the new Act applied. The new Act made it necessary for the owner, in whose favour the resumption was allowed, to bring the resumed land into his personal cultivation within a period of eight months from the date he entered into possession failing which, it provided, his rights in such land shall extinguish. The intendment of the new Act was to ensure even distribution of land ownerships on the basis of immediate possession, properly so -called or in the exteded sense contemplated by the expression "personal cultivation" and to snap the relationship of landlord and tenant and allied relationships reflecting mediate possession. While, therefore, providing that, the ceiling area shall not be exceeded at any time after the commencement of the new Act: the Legislature also directed that, after such commencement, no tenancy shall be created nor even any acquisition made, voluntarily or otherwise, except for personal cultivation or for industrial, commercial or horticultural purpose. The Legislature even provided that any acquisition, transfer or dispossession of land made, after the commencement of the new Act. Which contravenes the provisions of the Act, shall be inoperative and the land so acquired, transferred, or disposed of shall vest in the State. So much for the plan regarding even distribution of land ownerships. Feeling perhaps that this plan may remain lopsided, unless care was also taken to ensure even distribution of agricultural income, that is, income accruing from the land and orchards, the Legislature, in its wisdom, incidentally, directed that annual tax shall be imposed in the case of orchards in excess of 12$ standard acres. Another limb of the Agrarian Reforms was to stablise the position of tenants, landless persons and persons belonging to scheduled caste over lands owned by others underneath and appurtenant to theyâ„¢re dwelling houses. The Legislature forbade the eviction of occupiers from such houses and conferred on them a right to acquire the land underneath and appurtenant to these houses on payment of price to be determined under the new Act. In order to carry out the purposes of the new Act, a machinery was provided under the Act ¢and the Rules made thereunder with jurisdiction and power to determine questions and matters peculiar to the new Act, in respect of which, alongside, the jurisdiction of the civil courts was ousted. That was broadly the scheme of Agrarian re -organisation contemplated by the new Act.