1 The only question, which falls for determination, of the Full court is :-

Whether, the majority view taken by Full Bench of this court in Ramzan Darzi & ors. versus Mst. Azizi and ors. Cr. Reference Nos. 28 and 32 of 1976 and Cr. Revision Nos. 4 and 208 of 1975, needs reconsideration ?

2 The petitioner herein, filed ah application under section 145 Cr. P. C., before Judicial Magistrate Magam in respect of some land. The Magistrate, being unable to come to any conclusion, as to who was in actual possession of the subject of dispute, took recourse to section 146 Cr. P. C., and forwarded the record of the proceeding to Munsiff Magam for returning a finding on possession. In the meantime, it appears, section 145, 146, 147 and 148 Cr. P. C. were amended vide The Code of Criminal Procedure (Amendment) Ordinance1973 (NO: VI of 1973) and later on replaced by Act No. 11 of 1974. One of the consequences of these amendments was, that disputes pertaining to land as defined in the J & K Agrarian Reform Act. 1972 were made exclusively triable by either the District Magistrate or an Executive Magistrate of the 1st class. The civil court returned its finding to the judicial Magistrate Magam, admittedly, after the aforesaid Amending Act had come into force, holding the counter petitioners to be in recession of the disputed land. The Magistrate, in turn passed the final order under sub-section 6 of Section 145, holding the counter petitioners to be in possession of the subject of the dispute. A revision was taken by the petitioner to the Session judge at Srinagar, but that too failed, which made her file a fresh revision petition in the High Court. This revision petition came up for hearing before one of us, namely, Anand. ,J. before whom orders of the courts below were assailed on the authority of the majority, view taken in Ramzan Darzi,s case (Supra). The learned Judge, being of the opinion, that, majority view taken in the aforesaid case was not correct, and finding himself in agreement with the minority view taken by Mufti J recommended vide his order of reference dated September 10, 1976, reconsideration of the majority view by a larger Bench. It is in this background that this reference has come up before the Full Court.

3 The reasons which have impelled my learned brother Anand J, to make the reference are as below:

(a) There is no provision in the Amending Act for transfer of pending cases to Executive Magistrates, nor has a Judicial Magistrate any power to himself transfer a pending case to an Executive Magistrate, which must necessarily imply, that the Amending Act was not intended to be made applicable to pending cases

(b) the expression, "shall be exercisable", clearly denotes that the amended provision is to apply to future actions alone ; and

(c) under sub-section (1-b) of section 146 Cr. P. C. the civil court has to transmit its finding to the very Magistrate who made the reference, and on receipt of the reference, the same Magistrate must pass the final order in accordance therewith, more so, when the finding of the Civil court, is not open to challenge, either in appeal or in revision, which shows, that the Amending. Act cannot be possibly given a retroactive operation.

4. I propose to deal with the reasons suggested by my learned brother Anand J, but only after I have dealt with the other contention of Mr. M. L. Bhat, learned counsel for the respondents, that an Act which takes away the jurisdiction of a court to try a particular lis, even though procedural in nature, cannot be construed to be retrospective in its application, in the sense, that it cannot have application to pending actions, unless expressly or by necessary intendment made applicable to them. The same principle, according to Mr. Bhat, was laid down in the two authorities, viz : Hazari Tewari Vs. Mst. Maktula, AIR 1932 . Allahabad : 30 and V. C. Bus Service Vs. H. B. Sethna ; AIR 1965 : Madras : 149 relied upon by Jaswant Singh CJ and Mian Jalal-ud-Din