Sthal, Imli Chati, Muzaffarpur & Ors Vs. State of Bihar & Ors  Insc
167 (11 February 2008)
Arijit Pasayat & P. Sathasivam
APPEAL NO.1001 OF 2002 Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the order passed by a Division Bench of the Patna
High Court dismissing the writ petition filed by the appellants. The writ
petition was filed challenging vires of certain provisions of Bihar Land
Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961
(in short 'the Act'). The writ petition filed by the appellants was dismissed
on the ground that no return was filed, and after preparation of draft
statements they could have got opportunity to file objection. It was held that
the writ petition was filed challenging vires of an enactment which was
included in 9th Schedule of the Constitution of India, 1950 (in short the
support of the appeal learned counsel for the appellants submitted that since
the vires of certain provision were being challenged and the amendment to
Section 29 of the Act was under challenge, the question of filing return did
not arise. Further it was submitted that the amendment was not included in the
9th Schedule as was observed by the High Court. Earlier, all the writ petitioners
were granted exemption under Section 29(2) (a)(ii) of the Act to hold an extra
unit required for the purpose of performing religious rites and its maintenance
but by the amendment the same was taken away.
Learned counsel for the respondent-State on the other hand submitted that
though the amendment was not part of the 9th Schedule to the Constitution, yet
the effect of the amendment is that the power to exempt stood deleted with
Prayers in the writ petition were to the following effect:
is therefore, prayed that your Lordships may graciously be pleased to admit
this application, issue Rule NISI against the respondents calling upon them to
show-cause as to why the Section 2 of the impugned ordinance (Annexure 1) and
the directions contained in Annexure 2 be declared ultra vires of the
Constitution of India and quashed after hearing the party or parties, rule may
be made absolute;
ii) That such order, writ, direction or order may be passed to your Lordships as
may deem fit and proper in the facts and circumstances of the case."
Subsequently, the prayers were amended in the following terms:
is, therefore, prayed that the prayed portion of the writ application be kindly
permitted to be amended as followed in the light of the facts stated above:-
"That after first prayer in the writ petition, the following be added:-
RULE NISI be also issued against the respondents calling upon them to show
cause as to why Section 2 of the impugned Bihar Act 8 of 1997 (Annexure 3 and
the directions contained in para 5 (Gha)(vi) of the Annexure 4 be not declared
ultra vires the Constitution of India and quashed and after hearing the parties
RULE NISI be made absolute."
Since the High Court has not applied its mind to the challenge raised and has
erroneously referred to the 9th Schedule to the Constitution, it would be
appropriate to set aside the impugned order of the High Court and remit the
matter to it for fresh consideration in accordance with law.
the writ petition is of the year 1995, the High Court is requested to take up
the matter early and decide the writ petition as early as practicable,
preferably by the end of October, 2008.
appeal is allowed to the extent indicated without any order as to costs.