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CASE NO.: Appeal (civil)  1001 of 2002

PETITIONER: Sirisia Sthal, Imli Chati, Muzaffarpur & Ors

RESPONDENT: State of Bihar & Ors

DATE OF JUDGMENT: 11/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO.1001 OF 2002

Dr. ARIJIT PASAYAT, J.

1.      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 ’Constitution’).                       

 2.       In 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.  

3.      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  retrospective effect.    4.       Prayers in the writ petition were to the following effect:

"It 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

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vires of the Constitution of India and quashed  after hearing the party or parties, rule may be  made absolute;

And/or 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."  

5.       Subsequently, the prayers were amended in the  following terms:  

"It 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."    

6.      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.   Since 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.            

7.      The appeal is allowed to the extent indicated without any  order as to costs.