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, elated 23rd Magh, 2008. In the suit before the learned Single Judge of this Court Maghar Singh, appellant, prayed for a declaration that the Jammu and Kashmir Big Landed Estates (Abolition Act, 2007 is ultra vires of the powers of Shree Yuvaraj and therefore in spite of the passage of this Act the plaintiff continues to be the lawful owner of 811 kanals of land situate in villages Kadyal and Kotli Arjansingh, Tehsil Ranbirsinghpura, District Jammu. In the suit before the learned District Judge which was instituted by Badri Nath Munshi and another on their own behalf and on behalf of the Jammu and Kashmir Agricultural Association the appellants, sought the declaration that the Jammu and Kashmir Big Landed Estates (Abolition) Act, 2007, was invalid and the appellants and other landowners (members of the Jammu and Kashmir Agricultural Association) in the State are and shall continue to be in peaceful possession and enjoyment of their lands of which they were admittedly owners in possession prior to the enforcement of the Act in the State without any limitation and restrictions imposed by the provisions of the Act. The declarations were refused, the Act was held intra vires and both the suits were dismissed.
(2.)IN both the appeals the point for determina ­tion is whether the Jammu and Kashmir Big Landed Estates (Abolition) Act, 2007, is ultra vires of Shree Yuvaraj Karansingh who has made that Act in exercise of the powers vested in him tinder section 5 of the Jammu and Kashmir Constitution Act, 1996, read with the Proclamation issued by His Highness the Maharaja of Jammu and Kashmir published in an extraordinary issue of the Government Gazette dated 7th Har, 2006. Elaborate arguments have been addressed to us by the learned counsel for the parties. Section 4 of the Jammu and Kashmir Big Landed Estates (Abolition) Act, 2007, runs as follows: -
œ4. Extinction of the right of ownership in cer ­tain land. - (i) Notwithstanding anything contained in any law for the time being in force, the right of ownership held by a pro ­prietor in land other than land mentioned in sub -section (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 sub -section (i) shall not apply to - (a) unit of land not exceeding 182 kanals including residential sites, Bedzars and Safedzars ; x x x x x x x x x x x x x . 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 of the 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 article 385 of the Con ­stitution of India. (4) The Act is invalid inasmuch as it is in conflict with article 254 of the Constitu ­tion 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) Further more 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 on 26th October, 1947, he surrendered part of his sovereignty to the Dominion of India and therefore was a limited subordinate sovereign and consequently he could not delegate his legislative authority to Shree Yuvaraj. In order to appreciate the position of His Highness it would be necessary to give a short background of the constitutional relationship that existed between the Jammu and Kashmir State and the British Crown before the partition of India, and how it was affected by the Indian Independence Act of 1947 and by the subsequent execution of the Instru ­ment of Accession by His Highness on 26th October, 1947. Previous to the partition there was no doubt that the Ruler of the Jammu and Kashmir State was under the suzerainty of the British Crown inasmuch as foreign relations were under the exclusive control of the Crown Representative. But in so far as the internal sovereignty of the Ruler was concerned it was absolutely unlimited and there were no fetters on it. In this connection it would be relevant to reproduce sections 4 and 5 of the Jammu and Kashmir Constitu ­tion Act, 1996, as they stood before the Act was amended in November 1951: -

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 govern ­ment 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.