Magher Singh and others vs Principal Secretary, Jammu and Kashmir Govt.

Shahmiri J.

(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, dated 23rd Magh 2008. In the suit

before the learned single Judge of this Court Magher 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 Yuyaraj 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, TehsilRanbirsmgnpura, 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 J & K Agricultural Association) in the State are and still 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 determination 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 under 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. Elaboratearguments have been addressed to us by the learned counsel for the parties. Section 4,

Jammu and Kashmir Big Landed Estates (Abolition) Act, 2007 runs as follows:

Extinction of the right of ownership in certain land. (1) Notwithstanding anything contained in any law for the time being in force, the right of

ownership held by a proprietor in land other than land mentioned in subs. (2) shall subject to the other provisions of this Act, extinguish and cease

to vest in him from the date this Act comes into force.

(2) Extinction of the right of ownership under subsection (1) shall not apply to (a) unit of land not exceeding 182 Kanals including residential sites,

Bedzats and Safedzats;

The learned counsel for the appellants has impugned the Act on the following main grounds:

(1) His Highness the Maharaja of Jammu and Kashmir was not an absolute sovereign and therefore he could not entrust his legislative authority to

any other person.

(2) Shree Yuvaraj being a delegate of his Highness was not competent to enact the Act under Section 5 of the Jammu and Kashmir Constitution

Act, 1996;

(3) At any rate after the Constitution of India came into force Section 5, Jammu and Kashmir Constitution Act, 1996 under which the Jammu and

Kashmir Big Landed Estates (Abolition) Act, 2007 was passed by Shree Yuvaraj was abrogated or superseded by Art. 385 of the Constitution of

India.

(4) The Act is invalid inasmuch as it is in conflict with Art. 254 of the Constitution of India.

(5) The Act is also void because it aims at extinguishment of ownership in private property without making any suitable provision for compensation.

(6) Furthermore it is urged that even if the Act is intra vires some parts of it which' contain provisions for delegated legislation are void.

(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 in 26101947 he surrendered part of his sovereignty to the Dominion of India and therefore was a limited subordinated sovereign

and consequently he could not delegate his legislative authority to Shree Yuvaraj.

In order to appreciate the position of His High' ness 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 Instrument 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

Constitution Act, 1996 as they stood before the Act was amended in November 1951: ""4. The territories for the time being vested in His Highness

are governed by and in the name of His Highness, and all rights, authority and * jurisdiction which appertain or are incidental to the Government of

such territories are exercisable by His Highness, except in so far as may be otherwise provided by or under this Act, or as may be otherwise

directed by His Highness. 5. Notwithstanding anything contained in this or any other Act, all powers, legislative, executive and judicial, in relation

to the State and its Government are hereby declared to be and to have always been inherent in and possessed and retained by His Highness and

nothing contained in this or any other Act shall affect or be deemed to have affected the right and prerogative of His Highness to make laws, and

issue proclamations, orders and ordinances by virtue of his inherent authority"".

(b) These provisions make it crystal clear that the territories comprised in the State of Jammu and Kashmir were vested in His Highness and

governed by and in his name and all rights, authority and jurisdiction appertaining or incidental to the government of these territories was

exercisable by His Highness except in so far as was other, wise provided under the Act or as it might otherwise be directed by him. Despite the

fact that under the Act a Legislative Assembly, i.e. Praja Sabha, had been set up with certain circumscribed powers, all legislative, executive and

judicial powers of His Highness in relation to the State and its Government were declared to be or to have always been inherent in and possessed

by his Highness. In view of these clear provisions it is futile to argue that His Highness' powers to do what he pleased in relation to the State could

be seriously . questioned. So far as the internal sovereignty of the State was concerned the powers of the Ruler were similar to those of the British

parliament. In this connection the following extract from the (judgment of the late Chief Justice of the Supreme Court of India in The Delhi Laws

Act, (1912), AIR 1951 S C 332 at p. 337 (A) may be aptly quoted:

The important question underlying the three questions submitted for the Court's consideration is what is described as the delegation of legislative

powers. 'A legislative body which is sovereign like an autocratic ruler has power' to do anything. It may, like a ruler, by an individual decision,

direct that a certain person may be put to death or a certain property may be taken over by the State. 'A body of such character may have power

to nominate someone who can exercise all its powers and make all its decision'. This is possible to be done because there is no authority or tribunal

which can question the right or power of the authority todo so"".

There is no doubt whatsoever that the observations set out above fully apply to the powers of an. Indian ruler like the Ruler of the State, of Jammu

and Kashmir.

In this connection reference may also be made to a Pull Bench judgment of Pepsu High Court,. Gurdwara Sahib v. Piyara Singh', A. I. R. 1953

Pepsu 1 (B) cited by the learned Acting Advocate General. It is stated therein that sovereignty of a State has two aspects, i. e. ""external"" as

independent of all control from without and 'internal' as paramount over all actions within. A State by ceding certain powers with regard to external

affairs to another state does not cease to be sovereign if its powers with regard to internal matters remain unrestricted. It was held that the erstwhile

Patiala State in the above sense was an independent and sovereign State, and its Ruler, so far as internal matters were concerned, exercised

powers identical with those exercised by parliament in England. In short though in matters relating to external affairs and relations with states he

was controlled by the British Government, and even in internal matters the paramount power had the right to interfere in certain contingencies, in

internal matters his words had the weight and authority of law, and he exercised all the powers of a sovereign and discharged all his functions as

such in matters judicial, executive and administrative. In his sovereign capacity he had the fullest control over his subjects and their property in his

territories and could pass all kinds of orders. Therefore where in his capacity as the ruler of the Patiala State the Maharaja passed an executive

order depriving a subject of his property and conferred the same on a Gurdwara Committee the Pull Bench of the High. Court held in the above

case that the Civil Courts had no jurisdiction to question the legality of the order.

(c) While the Maharaja of Kashmir was under . the Paramountcy of the British Crown before the partition of India from 1581947 under Section 7,

Indian Independence Act (10 & 11 Geo VI Ch. 30) passed by the British Parliament suzerainty of His Majesty over the Indian States lapsed and

all functions exercisable by His Majesty at that date with respect to the State of Jammu and Kashmir, all obligations of His Majesty towards the

Jammu and Kashmir State or the ruler thereof and all powers, rights, authority or jurisdiction exercisable by His Majesty at that date in relation to

the State of Jammu and Kashmir by treaty or otherwise lapsed and the State became anindepedent and sovereign State in the full sense of the

International Law. Thus whatever limits to the sovereignty of His Highness in relation to matters coming within the sphere of paramountcy existed

before 1581947, these ceased to exist and His Highness became an uncontrolled and absolute sovereign even in relation to such spheres from that.

Now let us examine what was the effect of the execution of the Instrument of Accession by His Highness on 26101947. This Instrument of

Accession which was executed by the Ruler of the independent and sovereign State of Jammu and Kashmir was executed by him under Section 6,

Government of India Act 1935, as adapted by the Indian (Provisional Constitution) Order, 1947. By executing this Instrument of Accession the

Ruler on behalf of the State acceded to the Dominion of India with the object that certain authorities specified in Section 6 (1) (a) shall, by virtue of

the Instrument of Accession, 'but subject always to the terms thereof,' and for the purposes only of the Dominion, exercise in relation to the State

such functions as would be vested in them by or under the Act. It is clear that, even if the Instrument of Accession had not made any specific

reservations therein, the instrument read with Section 6, Government of India Act would leave the residuary sovereignty of the State entirely

unaffected. But the Instrument of Accession does not leave this important matter to be determined by implication alone. Clause 8 of the Instrument

•of Accession runs as follows:

Nothing in this Instrument affects the continuance of my .sovereignty in and over the State, or, save as provided by or under this Instrument, the

exercise of any powers, authority & rights now enjoyed by me as Ruler of this State or the validity of any law at present in force in this State"".

In view of this clear and express reservation we see that no change whatsoever was affected in the residuary sovereignty of the State or the power

of its Ruler so far as the succession of the State to the Dominion of India was concerned. It may not be out of place to mention here that on

531948 His Highness issued a proclamation by which he appointed a Cabinet to carry on the administration of the State. Sheikh Mohd Abdullah

was appointed the Prime Minister and all other Ministers were appointed on his advice. The proclamation laid down that the Cabinet would act on

the principle of joint responsibility. In the words of the Late Mr. Gopalaswami Ayyangar thus

He instituted a kind of responsible government with a Prime Minister and colleagues who would own collective responsibility for their acts and

regard themselves as jointly responsible for all the acts of the Government. (Vide Constituent Assembly debates dated 17101949, Vol. X No. 10

at page 426).

This Proclamation did not in any way affect the sovereign powers vested in the Ruler. The only 'effect of this proclamation was that thenceforward

His Highness exercised his executive and legislative powers in accordance with the advice given to him by his government, i. e. his Council of

Ministers while he continued to exercise his .judicial powers in accordance with the advice given to him by the Board of Judicial Advisers provided

under Section 71, Jammu and Kashmir Constitution Act, 1996. The inherent powers of the Ruler remained unchanged.

(d) Now the question to be examined is whether Article 370 of the Constitution of India which was embodied in the Constitution while the Indian

Constituent Assembly was about to finalize its labours made any change in the constitutional relationship of the State as it existed between the State

of Jammu and Kashmir and the Dominion of India. Article 370 of the Constitution of India runs as follows:

(1) Notwithstanding anything in this Constitution, (a) the provisions of Article 238 shall not apply in relation to the State of Jammu and

Kashmir; (b) the power of parliament to make laws for the said State shall be limited to

(i) those matters in the Union list and the concurrent List which, in consultation with the Government of the State, are declared by

the President to correspond to matters specified in the instrument of Accession of the State to the Dominion of India as the matters with respect to

which the Dominion Legislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.

Explanation: For the purposes of this article, the Government of the State means the person for the time being recognized by the President as the

Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation

dated the fifth day of March, 1948;

(c) the provisions of article 1 and this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President

may by order specify:

Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of

subclause (b) shall be issued except in consultation with the Government of the State:

Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with

concurrence of that Government.

(2) If the concurrence of the Government of the State referred to in para, (ii) of subcl. (b) of cl. (1) or in the second proviso to subcl. (d) of that

clause be given before the Constituent Assembly for the purpose of framing the Constitution of the state is convened, it shall be placed before such

Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provision of this article, the President may, by public notification, declare that this article shall cease

to be operative or shall *e operative only with such exceptions and modifications and from such date as he may specify.

Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before^ the President

issues such a notification.

A careful examination of this article would show that it in no way altered the basis of relationship between the State and the Union of India. The

residuary sovereignty of the State and the powers of its Ruler in matters other than those specified in the Instrument of Accession remained

unaffected. The purpose for which Art. 370 was incorporated in the Indian Constitution is clear t from the language of the article itself. This is also

apparent from the speeches made by the prominent members of the Government of India who were responsible for drafting this article and piloting

it through the Constituent Assembly. On 12101949 this is what the late Sardar Patel, Deputy Leader of the Congress Party, Deputy Prime

Minister and the Minister for States said in the Constituent Assembly on this subject:

In view of the special problem with which the Jammu and Kashmir Government is faced, wer have made special provision for the continuance of

the relationship of the State with the Union on the existing basis.

Reference may also be made in this connection to the following extracts from the speech of the late Mr. Gopalaswami Ayyangar which was

delivered by him while moving Art. 370 (then Art. 306A) in the Constituent Assembly:

(i) X XXX The States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of

Accession for the purpose of becoming units of the Republic, but they are mentioned in the Constitution itself; and in the case of practically all

states other than the State of Jammu and Kashmir, their constitutions also have been embodied in the Constitution for the whole of India. All those

other States have agreed to integrate themselves in that way and accept the Constitution provided.

(ii) In the case of the other Indian States or Unions of States there are two or three points which have got to be remembered. They have all

accepted the Constitution framed for States in part I of the new Constitution and those provisions have been adapted so as to suit conditions of

Indian States and Unions of States. Secondly, the Centre that is the Republican Federal Centre, will have power to make laws applying in every

such State or Union to all Union and Concurrent Subjects. Thirdly a uniformity of relationship has been established between those States and

Unions and the Centre. Kashmir's conditions are, as I have said special and require special treatment.

(iii) At present, the legislature, which was known as the Eraja Sabha in the State is dead. Neither that legislature nor a constituent assembly can be

convoked or can function until complete peace comes to prevail in that State. We have therefore to deal with the Government of the State which,

as represented in its Council of Ministers, reflects the opinion of the largest political party in the State.............

(iv) The second portion of this article relates to the legislative authority of Parliament over the Jammu and Kashmir State. This is governed primarily

by the Instrument of Accession. Broadly speaking, that legislative power is confined to the three subjects of defence, foreign affairs and

communications but as a matter of fact these broad categories include a number of items which are listed in the Instrument of Accession. I believe

they number some twenty to twentyfive. Now, these items have undergone a change in description, in numbering, in arrangement, as amongsts

themselves, in List I and List III of the new Constitution, it is therefore necessary that the items mentioned in the Instrument of Accession should be

brought into line with the changed designations of entries in Lists I and III of the new Constitution. So, clause (1) (b) of Art. 306A says that this

listing of the items as per the terms of the new Constitution should be done by the President in consultation with the Government of the State.

(v) Clause (b) (ii) refers to possible additions to the List in the instrument of Accession, and these additions could be made according to the

provisions of this article with the concurrence of the Government of the State ...................

(vi) Then, there is the explanation, which defines what the Government of the State means. The Government of the State is defined both in the

Constitution which is now supposed to be in force in the Jammu and Kashmir State as well as in the Proclamation which the Maharaja issued on

the 5th March 1948. The terms of the Proclamation, to the extent that they are inconsistent with the provisions of the Constitution Act of the State,

will prevail over that Constitution Act and therefore it is that in this Explanation it is the proclamation which is referred to. Under the terms of that

proclamation, the Maharaja constituted an interim popular Government, and he said

'I hereby order as follows:

(I) My council of Ministers shall consist of the Prime Minister and such other Ministers as may be appointed on the advice of the Prime Minister. I

have by Royal Warrant appointed Sheikh Mohd Abdullah as the Prime Minister with effect from the 1st day of March, 1948.

He proceeds

The Prime Minister and other Ministers would function as a Cabinet and act on principle of joint responsibility'. Then there was no Legislature

functioning and so he instituted a kind of responsible Government with a Prime Minister and colleagues who would own collective responsibility for

their acts and regard themselves as jointly responsible for all the acts of the Government. Now, that is brought out in this Explanation...............

(vii). ""Clauses (a) and (d) refer to the provisions of the Constitution other than the matters listed in Lists I and III. These various provisions have

been divided into certain . categories. The first according to this draft is that Article 1 of the Constitution will automatically apply. As you know, it

describes the territory of India, and includes amongts these territories, all the States mentioned in Part III, and Jammu and Kashmir is one of the

States mentioned in Part III. With regard to the other provisions in the Constitution, these will apply to the Jammu and Kashmir State with such

exceptions and modifications as may be decided on when the President issues an order to that effect. That order can be issued in regard to

subjects mentioned in the Instrument of Accession only after consultation with the Government of the State. In regard to other matters the

.concurrence of that Government has to be taken.

(viii). ""Then we come to clause (2). You will remember that several of these clauses provide for the concurrence of the Govt. of Jammu & Kashmir

State. Now, these relate particularly to matters which are not mentioned in the Instrument of Accession, and it is one of our commitments to the

people and Government of Kashmir that no such additions should be made except with the consent of the Constituent Assembly which may be

called in the State for the purpose of framing its Constitution. In other words, what we are committed to is that these additions are matters for the

determination of the Constituent Assembly of the State"", (vide Constituent Assembly Debates, Vol. X No: 10. dated 17th October, 1949 at pages

424 to 427).

In relation to the State of Jammu and Kashmir in short the effect of this article to use the words of the late Mr. Gopalaswami Ayyangar is that ""the

Union Legislature will get jurisdiction to enact laws on matters specified either in the Instrument of Accession or by later addition with the

concurrence of the Government of State"" which is of course subject to the ratification by the State Constituent Assembly and the State would

continue to be governed in the residuary field by its own laws and by its own Constitution.

(e) Accordingly I find that there is no substance whatsoever in the contention urged by the learned counsel for the appellants that His Highness'

legislative, executive and judicial powers in relation to the State were limited in the sphere outside the matters assigned to the Union. He could

certainly entrust all his rights and authority under Sections 4 and 5 of the Constitution Act to any person whom he liked even to the extent of

effacing himself altogether as the British parliament can do in the words of Kania C. J. referred to above and his proclamation dated 7th Har 2006

entrusting these powers to Yuvaraj was perfectly valid and constitutional.

(4) The second contention urged by the learned counsel for the appellants is that Yuvaraj being a delegate of His Highness the Act passed by him

under Section 5, J. & K. Constitution Act, 1996, was bad because the powers under Section 5 were inherent powers of His Highness and could

not be entrusted to the Yuvaraj. The learned Acting Advocate General has repelled this contention by taking his stand on the position that the

Yuvaraj was in no sense a delegate of His Highness.' He has strongly urged that the words of the proclamation published in the Gazette

extraordinary dated 2061949 clearly show that the Ruler during his absence from the State had transferred all the powers and functions

exercisable by him in relation to the State and its Government to Yuvaraj and, therefore, the Yuvaraj was the replica or manifestation of His

Highness and had as full and as plenary powers as His Highness himself. In order to appreciate this point it is desirable to give below the words of

the Proclamation itself:

Whereas I have decided for reasons of health to leave the State for a temporary period and to entrust to the Yuvaraj Shree Karansinghji Bahadur

for that period all my powers and functions in regard to the Government of the State.

Now, therefore, I hereby direct and declare that all powers and functions, whether legislative, executive, or judicial which are exercisable by me in

relation to the State and its Government in including in particular my right and prerogative of making laws of issuing proclamations. Orders and

Ordinances, of remitting, commuting or reducing sentences, and of pardoning offenders, shall during the period of my absence from the State be

exercisable by the Yuvaraj ShreeKaran singh ji Bahadur"".

It fully bears out that His Highness the Maharaja transferred all his rights, powers and prerogatives as contained in Sections 4, 5 and 72. J. & K.

Constitution Act, 1998, as it stood before its being amend'ed and the Ruler did not reserve any power to himself for this period. The Yuvaraj was

given all the powers by an authority as sovereign as the British Parliament. A reference to 'Empress v. Burah', (1878) 3 A. C. 889 corresponding

to 4 Cal 172 (P. C.) (C) would show that even in the case of a Legislature whose powers were expressly limited by an Act of the British

Parliament and which could obviously act only within the ambit of the powers so conferred it was held that in no sense it was an agent or delegate

of the Imperial Parliament and within its scope it had plenary powers of legislation as large as those of the British Parliament itself. The following

observations of their Lordships of the Privy Council in this case may aptly be quoted here:

The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can of course do nothing beyond

the limits which circumscribe these powers. But when acting within these limits it is not in any sense an agent or delegate of the Imperial Parliament,

but has, and was intended to have, plenary powers of legislation as large, and of the same nature, as those of Parliament itself.

In another case 'Hodge v. The Queen', (1884) 9 A. C. 117 (D), similar observations were made in the case of the powers of the provincial

Legislature of Ontario which has been created by the British North America Act. This runs as follows: ""It appears to their Lordships, however, that

the objection thus raised by the appellants is founded on an entire misconception of the true character and position of the provincial Legislature.

They are in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that

there should be a Legislature for Ontario, and that its Legislative Assembly should have exclusive authority to make laws for the province and for

provincial purposes in relation to the matters enumerated in Section 92, it conferred powers, not in any sense to be exercised by delegation from or

as agent of the Imperial Parliament, but authority as plenary and as ample, within the limits prescribed by Section 92, as the Imperial Parliament in

the plenitude of its powers possessed and could bestow. Within these limits of subjects and areas the local Legislature is Supreme, and has the

same authority as the Imperial Parliament."" From these authorities it would be clear that, while even a Legislature whose powers are circumscribed

by the superior authority which has created it can exercise legislative powers of the same nature as the superior authority itself and cannot be

treated as its delegate or agent, the contention that the Yuvaraj, to whom full and plenary powers of legislation had been given by a sovereign

authority which could do any thing it pleased, was an agent or delegate of that sovereign authority and that there are any checks or restraints on his

power, becomes groundless. In this connection the learned Acting Advocate General has also drawn our attention to 'Degamber Sain v. Lachhman

Dass', AIR 1952 J. & K. 7 (E) in which the Board of Judicial Advisers have held:

Under the Jammu and Kashmir Constitution Act, 1996, His Highness the Maharaja Bahadur has plenary power of Legislation. Under Section 5

of that Act all powers, legislative, executive & judicial in relation to the State and its Government are declared to be vested in His Highness. These

powers have now devolved on Shree Yuvairaj Bahadur under the Proclamation above referred to. It is clear that the legislative machinery in the

State is simple and legislation can be expeditiously made on the advice of those on whom the responsibility of day to day administration rests.

After this clear pronouncement on the subject by the highest Judicial authority in the State there can be no question that the Yuvaraj is not fully

competent to exercise powers under Section 5, Jammu and Kashmir Constitution Act, 1996.

(5) With regard to the point that Section 5, Jammu and Kashmir Constitution Act, 1996 is abrogated or at least superseded by the provisions of

the Indian Constitution it is urged on behalf of the appellants that the Yuvaraj by his proclamation dated 26111949 has declared that the

Constitution of India to be adopted by the ConI stituent Assembly of India shall in so far as it is applicable to the State of Jammu and Kashmir,

govern the constitutional relationship between this State and the contemplated Union of India and that the provisions of the constitution shall as

from the date of its commencement supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in

this State. Article 385 of the Constitution of India reads thus:

Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned

to meet for the first session under the provisions of this Constitution, the body or the authority functioning immediately before the commencement of

this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions

of this Constitution on the House or Houses of the Legislature of the State so specified.

This article has been made applicable to the State of Jammu and Kashmir by the President in consultation with the Government of the State under

the Constitution (Application to Jammu and Kashmir) Order 1950. It is argued that as under this article the legislative authority functioning in the

State before the commencement of the Constitution could exercise only the powers and perform the duties conferred by the provisions of the

Constitution on the House or Houses of the Legislature of the State, the Yuvaraj or even the Ruler himself could not pass a Law which the State

Legislature could not pass under the Constitution of India.

The contention is that the Big Landed Estates (Abolition) Act in fact expropriates lands in the State without making any provision for compensation

or specifying the principle for doing so and no State Legislature in India can pass a law which takes away or abridges the right conferred by Part

III of the Constitution and under Article 13 the same restrictions would be applicable to the Legislature in the State. In the first place St is not

strictly correct that the Big Landed Estates (Abolition) Act, 2007, did not provide any compensation for proprietors whose lands had been

expropriated. Under Section 26 of the Act some payment to the expropriated Landlords was provided until the Constituent Assembly of the State

settled the question of compensation. After the institution of suits the State Constituent Assembly decided that no compensation was to be paid to

the persons whose lands had been expropriated under the Act. It may, therefore, be assumed for the sake of argument that the Big Landed Estates

(Abolition) Act did not make any real provision for compensation. Is this Act under these circumstances ultra vires of the then State Legislature,

that is to say, the Yuvaraj? The learned Acting Advocate General has argued that the application of Article 385 to the State to quote his words is

imaginary and not real"". He stressed that the whole history of the constitutional relationship of the State with the Union and the provisions of

Article 370. which has been quoted in extenso in the, earlier part of the judgment show that Article 385 does not ""in terms apply to our State"". He

contends that it is clearly provided in Article 370 that the provisions of Art. 238 shall not apply in relation to the State of Jammu and Kashmir. This

means that the provisions contained in Part VI of the Constitution of India, which provides for a constitution of what were formerly known as

Indian States as distinguished from the provinces do not apply to our State. Article 168 which makes a provision for State Legislatures in all these

States & is contained in Part VI has no application to our State Not only this but List II State List & List III Concurrent List of the Seventh

Schedule of the Constitution are omitted from the Constitution (Application to Jammu and Kashmir) Order, 1950 and even els. (2) and (3) of Art.

246 do not apply to this State. Clause (2) of Art. 246 refers to the Concurrent List and gives power to Parliament and the State Legislatures

specified in part A and Part B of the First Schedule to make laws with respect to any of the matters enumerated in the Concurrent List List III.

Clause (3) of Art. 246 gives exclusive power to the State Legislatures to make laws with respect to List II. Provisions of Art. 370 read with the

Constitution (Application to Jammu and Kashmir) Order, 1950, which has been made under it, clearly shows that the Instrument of Accession

executed on 26101947 is still the real basis of relationship between the Union and the Jammu and Kashmir State and the power of Parliament to

make laws for the State is confined to matters which the President, in consultation with the State Government, declares to correspond to matters

specified in the Instrument of Accession governing the accession of the State to the Dominion of India and in addition to Arts. 1 and 370 those

provisions of the Constitution of India are to apply to the State which the President, in consultation with the Government of the State, declares as

related to the matters specified in the Instrument of Accession of the State. The remaining matters outside those to which the power of Parliament

to make laws for the State extends continue to remain within the exclusive power of the State Legislature and the residuary sovereignty of the State

thus remains entirelyunaffected. Of course the President can extend the power of Parliament to make laws with respect to a matter not specified in

the Instrument of Accession with the concurrence of the Government of the State which has to be subsequently ratified by the Constituent

Assembly. Similar provision is made with regard to the other provisions of the Constitution of India (Vide Second proviso to subcl. (d) of cl. (1) of

Art. 370). Article 370 which contains the basic provision of the structure of constitutional relationship between the State and the Union leaves the

State Constitution and the state sovereignty in relation to matters other than those specified in the Instrument o'f Accession and not covered by the

provisions of Art. 370 entirely unaffected. No provision has, therefore, been made or was necessary to be made so far as the Constitution of the

State was concerned. The State was to be governed by its own constitution till the Constituent Assembly of the State framed a Constitution for the

State. That this was the basis of the relationship between the State and the union will be amply clear by what has been stated in para. 3 (d) of this

judgment. The Constituent Assembly of the State was to have plenary powers inasmuch as it had to determine the Constitution of the State as well

as the sphere of the Union jurisdiction over the state.

In this connection a further reference may be made to4he speech of the Late Mr. Gopalaswamt Ayyangar in the Indian Constituent Assembly on

17101949 when Art. 370, then Art. 306A, was adopted by it. The relevant passage is as under:

Again the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the

position that an opportunity would be given to the people of the State to decide for themselves whether they will remain with the Republic or wish

to get out of it. We are also committed to ascertaining this will of the people by means of a plebiscite provided that peaceful and normal conditions

are restored and the impartiality of the plebiscite could be guaranteed. We have also agreed that the will of the people, through the instrument of a

constituent assembly will determine the constitution of the State as well as the sphere of Union jurisdiction over the State.

Article 385 is an interim provision for the recognition of legislatures in States in Part B of the First Schedule till new Legislatures in these States are

duly constituted & summoned under the provisions of the Constitution of India. As the Jammu and Kashmir State had to frame its own constitution

and the new legislature in the State was to be summoned under the State Constitution till a new constitution was framed by the Constituent

Assembly and a fresh legislature was set up under it, the question of the application of this article to the State could have no meaning whatsoever.

Again the existing legislature could not exercise powers and perform duties conferred by the provisions of the Constitution of India on the houses

of legislature in part B States, because Art. 370 specifically provides that the provisions of Art. 238 and consequently Part VI of the Constitution

which confers powers and duties on legislatures in Part B States shall not apply to the State of Jammu and Kashmir. Application of Art. 385 to the

State of Jammu and Kashmir would, therefore, lead to the absurd result of creating perfect vacuum in the legislative machinery of the State. It

would be against the letter and spirit of Art. 370 of the Constitution and would also run counter to the pledge given by the responsible leaders of

Indian Government that the relationship existing between the State and the Dominion of India was to be continued between the State and the Union

of India. The application of Art. 385 is, therefore, to be construed according to the elementary rule of construction that a thing which is within the

letter of a statute will, generally, be construed as not within the statute unless it be also. within the real intention of the framers of the statute (vide

Maxwell on Interpretation, of Statutes, 1946 Ed. page 20), & every effort has to be made to harmonize this interpretation with the letter & spirit of

Art. 370 which is the specific article in the Constitution providing basis of constitutional relationship between the State and the Union. The

application of Art. 385 is further open to the objection that the framers of the Constitution of India could not have intended to exceed their

jurisdiction. They had clearly admitted the right of the State to convene its own Constituent Assembly for the purpose of framing its constitution.

They, therefore, could not have intended to provide an interim provision for a matter which was outside their purview and for which they could not

and did not make any provision in the constitution. The Rulers of other Part B States had executed supplementary Instruments of Accession and

had agreed to the application of Art. 238 to their States.

After a careful consideration of all the factors bearing on this matter I agree with the learned Acting Advocate General that Art. 385 does not in

terms apply to our State. It may also be observed that under Art. 370 only such provisions of the Constitution could be declared by the President,

in consultation with the State Government to apply to the State of Jammu and Kashmir as related to matters specified in the Instrument of

Accession. Article 385 of the Constitution does not deal with any such matter. It clearly deals with a matter falling within the residuary sovereignty

of the State which has been specifically reservedunder cl. 8 of the Instrument of Accession. A provision of Constitution relating to a matter of this

nature could only be applied with the concurrence of the State Government pending ratification by the Constituent Assembly. Its application to the

state of Jammu and Kashmir under an Order of President in consultation with the Government is, therefore, not in accordance with the method,

provided by the Second proviso to subcl. (d) of cl. (1) of Art. 370. A reference in the judgment of the trial Judge, Kilam J. that the article has been

applied to the State with the concurrence of the State Government is manifestly incorrect. A careful appraisal of the facts stated above would show

that the article' has not been specifically excluded from the! Second Schedule to the Constitution (Application to J & K) Order, 1950 only through

an oversight or inadvertence. Now assuming for the sake of argument that the article applied to the State, the only meaning it can have is that it

recognizes that the Yuvaraj, i.e., the authority functioning immediately before the commencement of this Constitution as Legislature, continues to

exercise his powers under the State Constitution, i.e., the Jammu & Kashmir Constitution Act, 1996. To place any other interpretation on this

article would not be possible as it would lead to absurd conclusions. The State Constitution Act! is clearly saved under cl. 8 of the Instrument off

Accession and it remains materially unaffected by} Art. 370 of the Constitution.

I will now turn my attention to the proclamation of the Yuvaraj dated 25111949 Vide, (pages 371372 of the white Paper on Indian States,

published in 1950). The operative and relevant paragraphs of the Proclamation are as under:

That the Constitution of India shortly to be adopted by the Constituent Assembly of India, shall in so far as it is applicable to the State of Jammu

and Kashmir, govern the constitutional relationship between this State and the contemplated Union of India and shall be enforced in this State by

me, my heirs and successors in accordance with the tenor of its provisions;

That the provisions of the said Constitution, shall as from the date of its commencement, supersede and abrogate all other constitutional provisions

inconsistent therewith which are at. present in force in this State.

With regard to this proclamation the Acting Advocate General has stated that it has not been published in the State gazette. But whether it has

been published in the State Gazette or not or whether it has the support of the State Government on whose advice the Yuvaraj was to act I do not

think that it has any effect on the Jammu and Kashmir Constitution Act including S. 5 thereof. In the first operative paragraph it has been clearly

stated that the Constitution of India shall in so far as it is applicable to the State of Jammu and Kashmir; govern the constitutional relationship

between the State and the contemplated union of India. In the second paragraph the words ""that the provisions of the said Constitution shall, as

from the date of its commencement, supersede arid abrogate all other constitutional provisions inconsistent therewith which are at present in force

in this State"" can only be interpreted to mean such provisions of the Constitution as are really applicable to the State and not those provisions of the

Constitution which were not and could not be applied to the State in accordance with the letter and spirit of Art. 370. Nor has the argument urged

on behalf of the appellants any force that the Yuvaraj could not make an Act inconsistent with Part III of the Constitution relating to Fundamental

Rights. The Chapter on Fundamental Rights does not apply to the State of Jammu and Kashmir and no Act made by the Yuvaraj can be

questioned on this ground. In fact no legislation made by the Yuvaraj outside the matters within the competence of Parliament can form the

subjectmatter of review in a Court of law just as no Act of British parliament could be declared ultra vires by any Court. A reference may be made

to the remarks made by Kania C. J. reproduced in para. 3(b) of this judgment. In the result I agree with the learned trial Judge, Kilam J. that Art.

385 has no effect on S. 5, Jammu and Kashmir Constitution Act, 1996, and that the Yuvaraj could certainly make laws in all matters other than

those to which the power of parliament to make laws for the State extends. The matter in question is not one of the matters which are within the

legislative competence of Parliament.

(6) With regard to the fourth point it is urged by the learned counsel for the appellants that the question of the payment of compensation arising out

of the Big Landed Estates (Abolition) Act, 2007, falls within entry No. 42 of the concurrent List, i. e. List III of the Seventh Schedule of the

Constitution. This entry reads as under:

Principles on which compensation for property acquired or requisitioned for the purposes of the Union or of a State or for any other public

purpose is to be determined and the form and the manner in which such compensation is to be given.

It is submitted that under S. 6, Jammu and Kashmir Land Acquisition Act, 1990, no property can be acquired by the State for State purposes,

unless compensation is paid for that property in the manner provided in the Act. It is urged that Under Article 254 of the Constitution which has

been made applicable to the State an existing law, i.e. section 6, Jammu and Kashmir Land Acquisition Act, 1990, must prevail and the Big

Landed Estates Act should be declared void to the extent to which it is repugnant to that Act. In the first place it may be stated that the provisions

contained in the Big Landed Estates (Abolition) Act do not relate to the acquisition of property for the State or for any other public purpose. They

ordain extinguishment of the rights of the Landlord in the manner set forth in S. 4 of the Act and, therefore, these are not in conflict with S. 6, Land

Acquisition Act. But assuming for the sake of argument that there is some clash between the two Acts, can Art. 254 of the Constitution be invoked

for this purpose? For the sake of convenience the provisions of Art. 254 may be quoted here:

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a Law made by parliament which Parliament

is competent to enact, or to arty provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to

the provisions of clause (2), the Law made by Parliament, whether passed before or after the law made by the Legislature of such State, or as the

case may be, the existing law, shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy be void.

(2) Where a law made by the Legislature of a State specified in Part A or Part B of the First Schedule with respect to one of the matters

enumerated in the concurrent List contains any provision repugnant to the provisions of an, earlier law made by parliament or an existing law with

respect to that matter, then, the law so made by the Legislature of such State, shall if it has been reserved for the consideration of the President and

has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law

adding to, amending, varying or repealing, the law so made by the Legislature of the State"".

An examination of this article would show that this article appears to have been applied to the State only as an anticipatory provision. Article 370

left it open to the State of Jammu and Kashmir to agree to the extension of the power of Parliament to make laws in matters other than those

specified in the Instrument of Accession, in the Union List or in the Concurrent List. At the time when Article 370 was framed the Union and

Concurrent Lists could evidently not have been, examined with a view to see which of the entries in them would correspond to matters specified in.

the Instrument of Accession. It must have been considered that some entries in the., concurrent. List might also be found to correspond to

somematter contained in the Instrument of Accession. But when these Lists might have been examined at the appropriate time, the Constitution.

(Application to Jammu and Kashmir) Order, 1950, shows that no entry in the Instrument of Accession was found to correspond to any entry in the

Concurrent List and, therefore no entry in the Concurrent List was applied to the State. List II has been advisedly omitted from the Schedule

appended to the Constitution (Application to Jammu and; Kashmir) Order, 1950. Only certain entries of the Union List have been included in the

Schedule. Furthermore, Article 246 (2) giving Parliament as well as State Legislature power to make lawswith respect to any of the matters

enumerated in List III Concurrent List does not apply to theState of Jammu and Kashmir. It has, therefore, been rightly contended by the learned

Acting Advocate General that Article 254 is not really applicable to the State. It could apply to the State only if Parliament had power to make

laws wife respect to entry No: 42 in the Concurrent List. Not only Parliament has no power to legislate for the State in regard to that entry, but as

we haveseen it has no power to make any laws for the State in respect to any of the matters enumerated in that List. The condition precedent for

the effective application of Article 254 is that it should relate to 'a provision of law in the Concurrent List with respect to which Parliament has

power to make laws for the State. In the absence of such power and in the absence of the application of List III of the seventh Schedule to the

State the question of any provision of law made by the State Legislature being repugnant to any provision of a law made by parliament which

Parliament is not competent to enact for the State or to any listing law does not arise and I agree with the trial Court that the impugned Act cannot

be held ultra vires of the powers of Yuvaraj on this | ground.

(7) The fifth point taken by the learned counsel for the appellants comes to this that even if Part III containing Fundamental Rights is not applicable

to the State, the Yuvaraj could not take away natural right of property of a class of citizens without providing compensation. It is urged that the

right to property is a sacred and inherent right of citizens and they could not be deprived of it without compensation. Reliance has been placed by

the learned counsel for the appellants on certain observations made by the Supreme Court in State of Bihar v. Kameshwar Singh', A. I. R. 1952 S.

C. 252 (P). I have gone through this case and I find that it is not relevant as the case hinged on Article 31 (2) of the Constitution which declares

that no property could be taken or acquired for public purposes under any law unless the law provides for the compensation of the property so

taken. As Part III of the Constitution containing Fundamental Rights does not apply to the State, the case law arising out of the interpretation of

that article is not germane to our purpose. The learned counsel for the appellants has failed to cite before us any authority in which a law made by a

sovereign authority such as the British Parliament has been held to be open to judicial review.

On the other hand the learned Acting Advocate General has cited before us State v. Basdeo', AIR 1951 All. 44 (G) and 'A. K. Gopalan v. State

of Madras', AIR 1950 S. C. 27 (H). In Tan Bug Taim v. Collector of Bombay', A. I. R. 1946 Bom 216 at page 233 (I) the following

observations have been made:

'The Imperial Parliament has got the power to deprive a subject of his liberty of person and also of his rights of property in any manner whatever

without assigning any reason whatsoever or without making any compensation for the same.

'A. I. R. 1951 All. 44 (G)' quotes with approval the following passage from Dicey's Law of the Constitution Ed. 9, page 39:

The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined, has, under the English

Constitution, the right to make or unmake any law whatever; and further, that no person or body is recognized by the Law of England as having a

right to override or set aside the legislation of Parliament."" and after further discussion the ruling concludes thus

Unless the Court can point its finger to a particular provision of Constitution Act which is violated by the Legislature through the enactment, it

cannot rule out the enactment as ultra vires.

In 'AIR 1950 S. C. 27 (H), Kania C. J. and Mahajan J. laid down:

Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the Constitution but not

expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers conferred upon the

Legislature, Courts cannot declare a limitation under the notion of having discovered something in the spirit of the Constitution ""which is not even

mentioned in the instrument. It is difficult upon any general principles to limit the omnipotence of the sovereign Legislative power by judicial

interposition except sp far as the express words of a written Constitution give that authority.

We have seen that there is nothing whatsoever in the Jammu and Kashmir Constitution Act, 1996, which limits the legislative power of the Ruler or

the Yuvaraj within the residuary sovereignty of the State; Jammu and Kashmir Constitution Act, 1996, did not lay down air. Fundamental' Rights

which could not be abridged or taken away by the sovereign Legislature, i. e. the Ruler or the Yuvaraj and his powers of legislation as indicated

above in paragraphs 3 and 4 of this judgment are as wide and as plenary as those of the British Parliament and they cannot form the subjectmatter

of Judicial review, nor can they be impugned on any such ground as is urged by the learned counsel for the appellants.

(8) With regard to the last point urged on behalf of the appellants, it is argued that even if the Act is intra vires, certain provision in the Act, namely,

Sections 4 (4), 5 (5), 20, 26 and 35 are void as they authorise delegated legislation. The learned Acting Advocate General has brought it to our

notice that this point was neither raised in the plaint nor in the arguments before the trial Court. This is admitted by (the counsel for the appellants

but he urges that the point is raised in paragraph 12 of the memorandum of appeal though reference to the particular sections of the Act has not

been made therein. Counsel for the appellants attacks these provisions because of the principle of 'delegatus non potest delegare' on the ground

that the Yuvaraj was only a delegate of His Highness. This aspect of the question has been exhaustively dealt with in para. 4 above and it has been

held that the Yuvaraj was not the delegate of His Highness and that he had as full and as plenary powers as His Highness himself and, therefore, he

could make any law in the State and also delegate his powers of legislation to any person or body whom he thought fit to do so. Even then reliance

is sought to be placed on some of the observations made by some of the Judge of the Supreme Court in 'A. I. R. 1951 S. C. 332' corresponding

to '1951 S. C. R. 747 (A)',. The general effect of the Supreme Court ruling is that in the view of their Lordships the doctrine of separation of

powers was not rigidly imported into the Constitution of India and the maxim 'delegates non potest delegare' was not applicable inasmuch as the

Legislatures of the Union and of the States were not delegates of any authority but were sovereign legislative bodies, subject, of course, to the

limitations imposed by the Constitution. The majority of the Supreme Court also held that though delegation of the powers of legislation as to

matters of detail was a necessity under modem conditions and was permissible, the intention of the Constitution was that the legislative function

must be exercised by the legislative authority itself and there could be no delegation of legislative authority to the extent of abdicating its functions

and the outside agency to whom delegation was made could not become a parallel legislature. This majority view is mainly based on the principle

that the Constitution has made elaborate provisions as to how and by whom the legislative power was to be exercised and such power should be

exercised accordingly. If we examined the delegations made in most of the provisions of the Big Landed Estates (Abolition) Act, we shall see that

these relate to matters of detail permissible even under the Supreme Court ruling and do not part with essential legislative functions, namely,

legislative policy and its formulation a? a rule of conduct. But after a careful consideration of the relevant material I feel that these restrictions which

according to their Lordships of the Supreme Court are implicit in the Constitution of India do not apply to the Ruler of the Jammu and Kashmir

State who enjoyed full residuary sovereignty regarding which a good deal of case Law has been quoted in paragraph 4 of this judgment.

In the case of a Ruler of an Indian State there is plenty of authority including the observations of the Late Chief Justice of the Supreme Court in the

very case to which reference has been made in this paragraph for the proposition that he had an absolute power to do anything he pleased within

his residuary field of legislation. Such a Ruler could either legislate himself or nominate some one else who could exercise all his powers and make

all his decision (Vide para 3 (b) above). He could even efface himself altogether if he chose to do so. In the light of these observations it is hardly

necessary to go into the details of the provisions of the Big Landed Estates (Abolition) Act which have been impugned on this ground. It may,

however, be pointed out that the delegation covered by Sections 4 (4), 5 (5), 20 and 35 is made to subordinate authorities and relates to matters

of detail which would be even covered by the majority view of the Supreme Court in'AIR 1951 S. C. 332 (A).' In any case it is fully covered by '4

Cal 172 (P. C.) (C)', and other authorities mentioned in paragraph 4 of this judgment. With regard to Section 35 under which the Government

could by notification further delegate its functions or powers to the Revenue Minister or any other officer of the Government to be specified in such

notification, reference may be made to 'George Walkem Shannon v. Lower Main Land Dairy Products Board', A. I. R. 1939 P. C. 36 (J). Such

delegation is perfectly valid and is covered by the following observation of their Lordships of the 'Privy Council at page 39':

The third objection is that it is not within the powers of the Provincial Legislature to delegate so called legislative powers to the

LieutenantGovernor in Council, or to give him powers of further delegation. This objection appears to their Lordships subversive of the rights

which the Provincial Legislature enjoys while dealing with matters falling within the classes of subjects in relation to which the Constitution has

granted legislative powers. Within its appointed sphere the Provincial Legislature is as supreme as any other Parliament, and it is unnecessary to try

to enumerate the innumerable occasions in which Legislatures both Provincial Dominion and Imperial have entrusted various persons and bodies

with similar powers to those contained in this Act.

If such delegation of powers was permissible to a Provincial Legislature which was a creation of an Imperial Act of the sovereign authority, namely,

the British Parliament, the Ruler (or his replica, Yuvaraj) of a State like Jammu and Kashmir which retained all its residuary sovereignty in full,

could make such delegation. Section 26, however, stands on a slightly different footing. Here the question of award of compensation has been left

to be settled by the Constituent Assembly which could not be regarded as a subordinate authority. In paragraphs 3 (d) and 5 above it has been

indicated that the Constituent Assembly to be set up in the State was to have plenary powers which was to frame a Constitution for the State and

define the sphere of the Union jurisdiction in the State. We have seen that Yuvaraj being a sovereign authority like the British Parliament could

efface himself and could also obviously set up a parallel legislature for a particular urpose. There was nothing wrong in leaving the decision of the

question of payment of compensation to the expropriated landlords to a body which was to be convened for the purpose of drawing up the

Constitution of the State.

(9) For the foregoing reasons the judgments and the decree of the trial Courts in the two cases are affirmed and the appeals are dismissed. The

parties are, however, left to bear their own costs.

(10) WAZIR C..: These aretwo connected appeals and arise out of two suits, one instituted in the High Court in its original jurisdiction and the

other before the District Judge, Srinagar, for declaration that the Jammu and Kashmir Big Landed Estates (Abolition) Act of 2007 is ultra vires of

the powers of Shree Yuvaraj and does not affect the ownership rights of the plaintiffs over the lands in dispute. The single Judge of this Court in the

case of Magher Singh plaintiff held that the impugned Act was intra vires of Shree Yuvaraj and dismissed the plaintiff's suit. The same view was

taken in another case of Badri Nath Munshi and other plaintiffs by the District Judge and their suit was also dismissed. The plaintiffs in both these

cases have filed separate appeals against the decrees of the trial Courts. As the points involved in these appeals are similar we heard these appeals

together and this judgment shall dispose of both these appeals.

(11) The sole question for determination is whether or not the Jammu and Kashmir Big Landed Estates (Abolition) Act of 2007 is ultra vires of

Shree Yuvaraj who passed that Act, in exercise of the powers vested in him under section 5 of the Jammu and Kashmir Constitution Act, 1996.

(12) It is contended on behalf of the appellants that His Highness the Maharaja Bahadur Hari Singh ji was not an omnipotent sovereign but was a

subordinate sovereign. His sovereignty, if any, was lost after the State's accession to India and he or his representative could not enact any Law

under Section 5 of the Constitution Act and the impugned Act was, therefore, ultra vires of the powers of Shree Yuvaraj. This contention is based

on a misconception of the true constitutional position of His Highness. An outstanding feature of our Constitution before Act No: 17 of 2008 was

the transcedent supremacy of the Maharaja. He was the fountain of all powers, executive, legislative and judicial. He possessed all the essential

attributes of absolute sovereignty and his position could well be compared to that of the British Parliament. He could make or unmake any law as

he pleaded and no person or body was recognised by law in the State as having any right to override or supersede any piece of legislation enacted

by him. On account of his absolute supremacy no question of any constitutional invalidity of his enactments could be raised in any Court of law. A

reference to Section 7 of the Indian Independence Act, 1947, will further make it clear that even the external sovereignty of His Highness reverted

to him after the lapse of the paramountcy of the British Crown. His Highness thus became an omnipotent sovereign after the new Dominions (of

India and Pakistan) came into existence.

(13) The contention of the learned counsel that His Highness lost his sovereignty after the State's accession to India has equally no force and

cannot be accepted. A close study of Section 6, Government of India Act, 1935, (as adapted by the Indian Provisional Constitution Order, 1947)

will reveal that the accession of Indian States which was made possible by Section 2 (4), Indian independence Act, 1947, was subject always to

the terms of the respective Instruments of Accession and the functions that vested in the Governor General, the Federal Legislature and the Federal

Court under the said Government of India Act were to be exercised by them subject to the terms of the said Instruments of Accession. The

scheme of the section shows that a Ruler of a State while becoming a member of the federation could limit the subjects within which powers were

to be exercised by the federal bodies and could also impose such conditions and limitation^ which he desired. In Clause 8 of Instrument of

Accession executed by His Highness and accepted by the GovernorGeneral of India it has been specially provided that 'nothing in this Instrument

affects the continuance of my sovereignty in and over the State, or, save as provided by or under this Instrument, the exercise of any powers,

authority and right now enjoyed by me as Ruler of this State or the validity of any law at present in force in this state'. This position has also been

recognised both in Article 370 of the Constitution of India and the Constitution (Application to Jammu and Kashmir) Order 1950. Article 370 of

the Constitution does not affect the sovereignty of His Highness except to the extent to which he has himself surrendered a portion of the

Sovereignty. It is, therefore clear that in spite of the State's accession to India His Highness retained his internal sovereignty & was free to do

anything he liked within the sphere which was not covered by the ceded subjects. In this I am supported by a Full Bench ruling of the Pepsu High

Court reported as 'A. I. R. 1953 Pepsu 1 (F. B.) (B)', in which it has been held that a State by ceding certain powers with regard to external

affairs to another state does not cease to be sovereign if its powers with regard to internal matters remain unrestricted.

(14) It has been argued on behalf of the appellants that Shree Yuvaraj could not legislate under Section 5 of the Jammu and Kashmir Constitution

Act, 1996 inasmuch as His Highness did not & could not part with his inherent powers. His argument is that inherent powers are vested in His

Highness alone due to his being a sovereign of the State and he could not part with those powers in favour of another person.

(15) It has been pointed out above that His Highness was an omnipotent sovereign and his sovereignty was not limited except in regard to those

subjects which he had ceded. A perusal of Sections 4, 5 and 72, Jammu and Kashmir Constitution Act, 1996, as they stood before Act No: 17 of

2008 was passed, will make it clear that His Highness was supreme authority in the State and there was no limitation on his powers. His position

was similar to that of the British Parliament. Section 4 of the Constitution Act provides that 'the territories for the time being vested in His Highness

are governed by and in the name of His Highness, and all rights, authority and jurisdiction which appertain or are incidental to the government of

such territories are exercisable by His Highness, except in so far as may be otherwise provided by or under this Act, or as may be otherwise

directed by His Highness."" From this it is abundantly clear that His Highness could direct that the rights, authority and jurisdiction which appertain

or are incidental to the Government of the territories of the State may be exercised by some one else as his regent. The expression 'all rights,

authority and jurisdiction which appertain or are incidental to the Government' is wide enough to cover the legislative, executive and judicial

functions of the Government. It may be pointed out here1 that His Highness by Proclamation of 7th Har 2006 which corresponds ""to 2061949,

expressly ordained Shree Yuvaraj to carry oh the Government of the State and entrusted all his powers, rights and prerogatives to the Yuvaraj for

that purpose. Shree Yuvaraj was, therefore, fully competent to exercise powers and prerogatives which were exercisable by his Highness himself.

(16) Great stress was laid by the learned counsel for the appellants on the fact that His Highness being himself a delegate of the British Parliament

could not further delegate his powers to the Yuvaraj. There appears some confusion in the mind of the learned counsel in regard to the principle

'delegates non potest delegare'. This principle is not applicable to His Highness as he is not a delegate of the British Parliament but was supreme

and enjoyed powers which were not limited by any legislation. His Highness was independent and powerful as British Parliament itself in so far as

internal sovereignty of the State was concerned and he could direct anyone to carry out the same functions in respect of the Government as he

could himself do. There have been some occasions previously when His Highness entrusted his powers to different persons or bodies for the

purpose of carrying on his Government in his absence; for instance on 21111944, when he went abroad in connection with his tour to the various

war fronts he appointed a council consisting of three members and entrusted them with full powers to carry on the Government in his absence; (2)

on 30101947, when he appointed Sheikh Mohammed Abdulla to function as the Head of the Administration. Instances of such like entrustments

of powers and prerogatives by the Crown are to be found in the English History as well. Reference in this connection may be made to Halsbury's

Laws of England Vol. VI page 449 and Anson's Law and Custom of Constitution Vol. II part I.

(17) In a recent case reported as 'AIR 1952 J & K 7 (E)', in which it was held that all powers, legislative, executive and judicial in relation to the

State and its Govt. have under His Highness' Proclamation devolved upon Shree Yuvaraj. This pronouncement of the Board of Judicial Advisers

has set at rest all doubts and controversies on the point whether or not His Highness could entrust his inherent powers to Shree Yuvaraj. In a case

which came up before the Supreme Court reported as 'AIR 1951 SC 332 (A)', the late Chief Justice Kania observed at page 337 as under:

A legislative body which is sovereign like an autocratic ruler has power to do anything. It may, like a Ruler, by an individual decision, direct that a

certain person may be put to death or a certain property may be taken over by the State. 'A body of such character may have power to nominate

someone who can exercise all its powers & make all its decisions'. This is possible to be done because there is no authority or tribunal which can

question the right or power of the authority to do so.

(18) It is, therefore, quite clear that by virtue of the proclamation made on the 7th Har 2006 Shree Yuvaraj became a replica tof His Highness

possessing rights, powers and prerogatives which were as ample and full as those enjoyed by His Highness himself.

(19) It is further contended by the counsel for the appellants that the impugned Act having been passed by Shree Yuvaraj under S. 5, Jammu and

Kashmir Constitution Act, being abrogated by Art. 385 of the Constitution of India which according to the learned counsel had been wholly

adopted by Shree Yuvaraj by his proclamation dated 25111949, is invalid. This contention of the learned counsel is again devoid of all force. The

Constitution of India, it will be observed, has got only a limited application to the State of Jammu and Kashmir. The main provision of the said

Constitution so far as the State is concerned is Art. 370 which lays down that only such of the provisions of the Constitution of India shall apply to

the State of Jammu and Kashmir as the president of India may, in consultation with the State Government, declare to be applicable. Shree

Yuvaraj's aforesaid proclamation has to be interpreted in the light of Art. 370.

In para 1 of the proclamation Shree Yuvaraj observes that the Constitution shortly to be adopted by the Constituent Assembly of India shall, in so

far as it is applicable to the State of Jammu and Kashmir, govern the Constitutional relationship between this State and the contemplated Union of

India and shall be enforced in this State by him in accordance with the tenure of its provisions. In second paragraph he says that 'the provisions of

the said Constitution shall, as from the date of its commencement, supersede & abrogate all other constitutional provisions inconsistent therewith

which are at present in force in this State.' Beading the two paragraphs together and bearing in mind the rule of harmonious construction it will be

obvious that the express provisions of the said Constitution can mean only those provisions which apply to the State and not those which have no

application. Moreover a perusal of the Constitution (Application to Jammu and Kashmir) Order, 1950 which was promulgated by the President on

26111950 and which is, therefore, subsequent to Shree Yuvaraj's proclamation further makes it clear that the Constitution of India has only a

restricted application to the State.

Reference has also been made by the counsel for the appellants to Art. 385 which is not quite .germane. An analytical examination of Art. 370 of

the Constitution of India and Constitution (Application to Jammu and Kashmir) Order will reveal that Art. 385 does not in terms apply to •our

State. It is provided in Art. 370 that the provisions of Art. 238 (which in turn makes the provisions of Part 6 of Constitution of India applicable to

Part B States) shall not apply in relation to the State of Jammu and Kashmir. When Art. 238 itself is not applicable no Article contained in Part VI

is applicable. Thus Art. 168 which provides for the legislatures of the State is also not applicable. The learned counsel for the appellants has argued

that impugned Act could not have been passed by the Yuvaraj as legislature of the State was in existence and could be summoned to pass such an

Act. There appears to be some confusion in the mind of the learned counsel in regard to this point. As pointed out above Art. 168 is not

applicable; so the question of summoning the legislature under the provisions of Constitution of India as contemplated by Art. 385 could not arise.

It will further be evident that Sch. 7 has been wholly omitted from applicability and els. (2) and (3) of Art. 246 also do not apply to our State, i.e.,

there is no State list or concurrent list so far as our State is concerned. It is not, therefore, clear as to how the body or authority functioning as

legislature in our State could exercise the powers or perform its duties when the Constitution of India did not confer any such powers. It appears

that by some mistake or oversight Art^ 385 has been included in Sch. 2 to the Constitution (Application to Jammu and Kashmir) Order, 1950.

(20) Even assuming that Art. 385 is applicable let us see what would be its effect. The term of the Praja Sabha (State Legislative Assembly) had

expired long before the Constitution of India came into force. There was noi legislative Assembly functioning immediately before the

commencement of the Constitution. The only body or authority functioning immediately before the commencement of the Constitution of India was

the authority exercising powers of legislation under S. 5, Jammu and Kashmir Constitution Act. i.e. Shree Yuvaraj. It bills down to this that Shree

Yuvaraj who exercised the powers of legislation under the aforesaid proclamation of His Highness immediately before coming into force of the

Constitution of India was to continue to legislate. Further Art, 372 of the Constitution of India provides that laws in force in any part of India will

continue to remain in force until repealed by any enactment and it is to be noted that before Act No: 17 of 2008, Section 5 of the Jammu and

Kashmir Constitution Act had not been repealed by any enactment. Thus there being no repugnance between our Constitution Act of 1996 and the

Constitution of India, the former provision stood intact and Shree Yuvaraj continued to enjoy full powers of legislation.

(21) It is further contended that the impugned Act is invalid because it is repugnant to the Indian Land Acquisition Act and Jammu and Kashmir

Land Acquisition Act. Reliance in this behalf is placed on Art. 254 of the Constitution of India which reads as under:

(1) If any provision of a Law made by the Legislature of a State is repugnant to any provision of a Law made by Parliament which Parliament is

competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the

provisions of clause (2) the Law made by Parliament, whether passed before or after the law made by the Legislature of such State, or as the case

may be the existing law, shall prevail and the law made by the Legislature of the State, shall to the extent of repugnancy, be void.

(2) Where a law mad'e by the Legislature of a State specified in Part A or Part B of the First Schedule with respect of the . matters enumerated in

the Concurrent List contains any provision repugnant to the provisions of an earlier Law made by Parliament or an existing Law with respect to

that matter, then, the law so made by the Legislature of such State, shall if it has been reserved for the consideration of the President and has

received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law

adding to, amending, varying or repealing the law so made by the Legislature of the State.

The argument with respect to repugnancy of the impugned Act to the Indian Land Acquisition Act is based on Article 254 Part (1). Article 254 (1)

and (2) when examined in conjunction with other provisions of the Constitution of India will be found to have no real application to our State. The

first sine qua non for the applicability of this Article is the competency of the Indian Parliament to enact a law to which the impugned Act is said to

be repugnant, and secondly there must be a concurrent list so far as our State is concerned. The Indian Parliament has not got the sajne powers of

legislation in relation to the State as it has got with regard to other Part B States. The question of repugnancy can only arise if the law is repugnant

to some other law which the Parliament is competent to enact, i. e., any law dealing with a matter contained in the First Schedule to the

Constitution (Application to Jammu and Kashmir) Order, 1950. The Indian Land Acquisition Act, being a Law with respect to a matter that is not

enumerated in the said Schedule and there being no Concurrent List, the impugned Act is not hit by Article 254 (1).

(22) The question of repugnancy of the impugned Act to the State Land Acquisition Act cannot also be raised. Under Article 254 (2) it is

necessary that the impugned Act should be with respect to some provision of an existing law which also relates to one of the matters specified in

the Concurrent List. As already seen Schedule 7 to the Constitution of India and Article 246 (2) & (3) do not apply to our State. There being no

Concurrent List so far as our State is concerned, application of Art. 254 (2) can have no meaning and reference to this provision is wholly

irrelevant.

(23) It has been argued that the impugned Act is void because it aims at extinguishing the rights of ownership in private property without providing

for compensation. It is contended that no property can be acquired without compensation and no law could be enacted which is repugnant to the

fundamental rights. It may be pointed out here that Part III of the Constitution wherein are placed the various fundamental rights has not been made

applicable to our State. It follows, therefore, as a corollary that fundamental rights of the people of the State have not been recognised so far. As

Part III of the Indian Constitution is not applicable to the State we have to see if there is any provision in our Constitution which corresponds to

Article 13 of the Constitution of India or whether there was any other check on our erstwhile Ruler's power of legislation in regard to the private

property. We have already examined the power of the Ruler of the State under the Constitution obtaining in the State. His Highness was

omnipotent sovereign and there was no law which he could not make or alter. So there was no restriction on the powers of the Ruler to make laws

in respect of the private property of his subjects.

Although it may be very hard on the subjects not to possess fundamental rights and to be deprived of the private property without compensation

under a law enacted by a competent authority yet the Courts cannot afford any relief to the subjects in case they find that the law, whether good or

bad, is made by a competent authority and the executive has strictly acted according to that law. The function of the Court is to interpret the law as

it is and not to suggest what the law ought to be. Since the fundamental rights have not been recognised in our State either in the form of moral

precepts or in the form of guarantee enforceable in law, the Courts in the State cannot declare any law as unconstitutional on the ground of

contravention of any supposed fundamental or natural right. In support of this principle reliance may be placed on the following authorities: 'A. I. R.

1950 S. C. 27 (H)', and AIR 1951 All. 44 (G)', wherein it has been held that an Act cannot be declared void if it is merely supposed to be against

the spirit pervading the constitution. The effect of this pronouncement is that we must lay our hand on some specific provision of the Constitution

which renders the enactment as void.

(24) The learned counsel for the appellants has relied upon 'A. I. R. 1952 S. C. 252 at page 271 (F)', wherein it has been laid down that the

obligation for payment of just compensation is a necessary incident of the power of compulsory acquisition of property, both under the doctrine of

the English Common Law as well as under the continental doctrine of eminent domain, subsequently adopted in America. But this authority is not

helpful to the appellants inasmuch as it is based on particular words of Article 31 Clause (2) of the Indian Constitution.

(25) Lastly it has been argued that certain provisions of the impugned Act such as Section 2ft are delegated piece of legislation which Shree

Yuvaraj could not enact as a delegate of His Highness. Section 26 of the impugned Act is as under:

There shall, until the Constituent Assembly of the State settles the question of Compensation with respect to the land from which expropriation has

taken place under this Act, be paid by the Government to every proprietor who has been expropriated from any land under the provisions. of this

Act, an annuity in the following manner, namely:

(a) for the first year after expropriation an amount equal to 3/4th of the land revenue assessed on the land from which expropriation has taken

place,

(b) for the 2nd year 2/3rd of such land revenue; and

(c) for the 3rd and subsequent years 1/2 of such land revenue.

Provided that the amount so payable shall not in any case exceed a sum of Rs. 3,000 per annum:

Provided further that no such amount shall be payable in respect of any area held or appropriated by the proprietor from lands recorded; as

ShamilatDeh.

(26) A perusal of Section 26 makes it clear that the legislature has not denied compensation but has referred its settlement to the Constituent

Assembly. The first question is whether shree Yuvaraj was a delegate of His Highness and the next question is whether he could delegate the

power to the Constituent Assembly to settle the question of compensation. We have noticed above that Shree Yuvaraj is not a delegate of His

Highness but was a replica of His Highness enjoying powers which in their nature, scope and amplitude coincide with those of His Highness. Shree

Yuvaraj thus did not act as an agent or delegate of His Highness and the contention of the learned counsel for the appellants is. without force. Even

with respect to the Indian Legislature which derived its power of Legislation from the British Parliament it has been held that while enactingwithin

the spheres of its powers it does not act as a delegate. Reference in this connection may be made to '4 Cal 172 at page 180 (P. C.) (C), 'Madho

Saran Singh v. Emperor', A. I. R. 1943"" All. 379 (P. B.) (K) and 'United Provinces v. Mt. Atiqa Begum', A. I. R. 1941 P. C. 16 at page 24 (L).

In 'AIR 1941 All 44 (G) and 'Veerabhadrayya In re', A. I. R. 1950 Mad 243 (M) it has been held that the principle of delegata potestas non

potest delegare is inapplicable to the Indian Legislature. If this principle is not applicable to the Indian Legislature which derived its power from the

British Parliament much less could it be applicable to His Highness or his replica Shree Yuvaraj. The Ruler was fully competent to frame any law in

any fashion he liked through any agency he liked. His position in this respect was that of.British Parliament. Reference in this behalf may be made

to a Privy Council ruling reported as 'A. I. R. 1939 P. C. 36 (J)', in which it has been held that within its appointed sphere the provincial

Legislature is as supreme as any other Parliament. It is within the power of the Provincial Legislature to delegate legislative powers to the

LieutenantGovernor in Council, or to give him powers of further delegation.

(27) We have also been referred by the counsel for the appellants to an authority reported as 'AIR 1951 S. C. 332 (A)', in support of the

contention that legislative powers in regard to compensation could not have been delegated by Shree Yuvaraj to Constituent Assembly but a

reference to Para 39 of this ruling will show that it is based on principle of separation of powers and implied prohibition against delegation of

legislative functions contained in Articles 245 and 357 of the Constitution of India. While there is an implied prohibition against delegation of

legislative function in India we have in our State Constitution neither any affirmative limitation nor any negative prohibition against such delegation.

Shree Yuvaraj, therefore, was fully competent to leave the question of determination of the compensation to the Constituent Assembly.

(28) For the reasons given above it is clear that the impugned Act is not ultra vires of the powers of Shree Yuvaraj nor is it open to review by our

Courts. The Courts below have rightly dismissed the suite filed by the plaintiffs and these appeals are, therefore, dismissed. The parties are left to

bear their own costs in this Court.

(29) A/B.O.D. Appeals dismissed.