MST. FAZI Vs. MOHAMMAD BHAT

JUDGEMENT

(1.) THE only question, which falls for determination of the Full Court is :-

(2.) THE petitioner herein, filed an application under Section 145 Cr. P.C., before Judicial Magistrate Magam, in respect of some land. The Magistrate, being unable to come to any conclusion, as to who was in actual possession of the subject of dispute, took recourse to Section 146 Cr. P.C., and forwarded the record of the proceeding to Munsiff Magam for returning a finding on possession. In the meantime, it appears, Sections 145, 146, 147 and 148 Cr. P.C. were amended vide the Code of Criminal Procedure (Amendment) Ordinance 1973 (No. VI of 1973) and later on replaced by Act No. II of 1974. One of the consequences these amendments was that disputes pertaining to land as defined in the J&K Agrarian Reforms Act, 1972 were made exclusively triable by either the District Magistrate, or an Executive Magistrate of the Ist Class. The civil court returned its finding to the Judicial Magistrate Magam, admittedly, after the aforesaid Amending Act had come into force, holding the counter petitioners to be in possession of the disputed land. The Magistrate, in turn passed the final order under Sub-Section (6) of Section 145, holding the counter petitioners to be in possession of the subject of the dispute. A revision was taken by the petitioner to the Sessions Judge at Srinagar, but that too failed, which made her file a fresh revision petition in the High Court. This revision petition came up for hearing before one of us, namely, Anand J., before whom order of the courts below were assailed on the authority of the majority view taken in Ramzan Darzi's case (supra). The learned Judge, being of the opinion, that majority view taken in the aforesaid case was not correct, and finding himself in agreement with the minority view taken by Mufti, J. recommended vide his order of reference dated September 10, 1976, reconsideration of the majority view by a larger Bench. It is in this background, that this reference has come up before the Full Court.

(3.) I propose to deal with the reasons suggested by my learned brother Anand J., but only after I have dealt with the other contention of Mr. M.L. Bhat, learned counsel for the respondents, that an Act which takes away the jurisdiction of a court to try a particular lis even though procedural in nature, cannot be construed to be retrospective in its application, in the sense, that it cannot have application to pending actions, unless expressly or by necessary intendment made applicable to them. The same principle according to Mr. Bhat, was laid down in the two authorities, viz.; Hazari Tewari v. Mst. Maktula, AIR 1932 All 30 and V.C. Bus Service v. H.B. Sethna; AIR 1965 Mad 149 relied upon by Jaswant Singh C.J. and Mian Jalal-ud-Din, J., as their Lordships then were, for supporting their view, and the reliance, as such, argued the learned counsel, was clearly misplaced. He also referred to a number of other decisions on the same point.