GH AHMAD DEV Vs. STATE

JUDGEMENT

(1.) BY this writ petition, the petitioner who allegedly held land comprised in Khasra No. 867 and 868 measuring 3 Kanals and 14 Marias and 11 Kanals and 9 Marias respectively within the limits of notified area Doda as owner raised a dispute relating to the said land on account of the mutation of respondent no, 2 by which proprietory rights on payment of levy of Rs. 2, 575/ -are conferred by the Tehsildar Agrarian Reforms, Doda.

(2.) THE petitioner herein has challenged the vires of section 7 (2) (e) of the Jammu and Kashmir Agrarian Reforms Act, 1976 (for short hereinafter called the Act) The contention of the petitioner mainly revolves round the controversy, by which the tillers of the soil are given benefit in the State of Jammu and Kashmir. According to the petitioner, looking to the preamble of the said Act, its object is not in accord with the provisions of Article 3I -A of the Constitution of India, the petitioner who claims proprietory rights in the land in dispute challenges that the deprivation of the petitioners right to property is not for meeting any of the contingencies given in the said Article, parcation ticularly so, when the petitioner is denied the right to resume the land for personal cultivation by section 47 of Jammu and Kashmir Tenancy Act. Samvat 1980. He further submits that transfer of lands to tillers by vesting the preprietory rights under section 8 of the said Act in the State, when the owner himself was willing to till his land is viola -tive of Article 19 (f) of the Construction of India as applicable to the State of Jammu and Kashmir and hence the vesting itself is not for the public purpose under the provisions of section 4 of the said Act, which is also violative of Article 31 of the Constitution of India. The classification of the occupancy tenant is also challenged, as the distinction drawn between the classes of Occupancy tenants for the purpose of resuming land is without any sound basis, arbitrary and has no nexus to the aim and object of the said Act and thus on this count it is violative of Article 14 of the Constitution of India also.

(3.) HEARD the learned counsel for the parties. Learned councel for the respondents have raised a preliminary objection based on the authoritative pronouncement of their Lordships of the Honble Supreme Court in a similar case reported in AIR 1983 S. C. 920 (Prem Nath Raina and others, petitioners Vs. State of Jammu and Kashmir and others, Respondents). There remains nothing in the present petition to be decided, as the vires of Jammu and Kashmir Agrarian Reforms Act, 1976 has been upheld by their Lordships of the Supreme Court with a special reference to Section 7 also. Faced with this argument, learned counsel for the petitioner very fairly and in my opinion rightly so conceded to the point that the various provisions discussed in the above said authority leaves no doubt that the vires of the enactment is upheld, but he reiterating the points quoted above submitted that in the present case although the other points are not open to him, but he confined his argument to the provisions of clause (c) of sub -section (2) of Section 7 of the Act and submits that this was neither considered nor discussed by their Lordships in the said authority and it is still open to challenge. He further points out by referring to para 9 of the judgment of their Lordships of the Supreme Court quoted above that the controversy is left open with the following observations with reference to the case of Kaman Rao reported in AIR i981 S C. 271 that,