Full Judgment Text
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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.