Patna High Court
Ramdayal Sahu vs Hari Shankar Lal Sahu And Ors. on 7 July, 1966
Equivalent citations: AIR1968PAT310, AIR 1968 PATNA 310, 1967 BLJR 78 ILR 46 PAT 63, ILR 46 PAT 63
JUDGMENT Misra, J.
1. This appeal arises out of an objection by the respondents to the attachment and sale of lands comprised in Khata Nos. 69 and 71, within Khewat No. 2/2, in village Armai, police station Gumla in the district of Ranchi.
2. Ramdayal Sahu obtained a decree for Rs. 7,000/- against the respondents on the 18th of July, 1940. The decree was put into execution and, in course of it, the judgment-debtor put forward the objection that the two khatas in question were raiyati lands and the decree-holder was debarred from putting these lands to sale under Section 47 of the Chota Nagpur Tenancy Act (Bengal Act 6 of 1908) as amended in 1938 and 1947. No doubt, these lands were originally the bakasht lands of the Judgment-debtor, but after the proprietary interest vested in the State of Bihar under the Land Reforms Act, the Judgment-debtor continued in possession of the lands as raiyati interest in terms of Section 6 of the Land Reforms Act. The executing court acceded to the contention and allowed the Miscellaneous Judicial Case No. 80 of 1958 which arose out of the objection. The decree-holder came up in appeal from the decision of the Special Subordinate Judge, Ranchi, who allowed the objections of the Judgment-debtor, and the appeal was placed before a single judge for disposal. By an order dated the 12th, May, 1960, the learned single Judge directed the appeal to be placed before a Division Bench, and the Division Bench by order dated the 20th. November, 1964, directed that the case should be placed before a larger bench. Accordingly, the matter has been placed before us to pronounce upon the validity of Ss. 46 (1) (c) and 47 of the Chotanagpur Tenancy Act, hereinafter called the Act. The questions formulated to be answered and as recast stand thus:
(1) Whether the restrictive provision in Clause (c) of the second proviso to Section 46 (1) of the Chotanagpur Tenancy Act to the effect that a transfer of his occu-pancv holding by a raiyat of a class other than Scheduled Tribes, Scheduled Castes or backward classes can be made only to a resident within the local limits of the district in which the holding is situate, is valid and legal in view of Article 19 (1) (f) of the Constitution?
(2) If Section 46 (1) (c) is struck down as invalid to the above extent whether Section 47 can stand as valid in general terms relating also to the occupancy raiyati interest of persons who are other than members of Scheduled Tribes, Scheduled Castes or backward classes?
3. Mr. L. K. Choudhary appears in support of the appeal and the respondents were not represented either before the single Judge or before the Division Bench. Accordingly, notice was issued to the Advocate General to put in appearance and place before the Court the other point of view on account of the importance of the question involved in it and as it affects the matter of legislative policy in regard to raiyati lands in the district of Ranchi.
4. It may be stated that the learned Special Subordinate Judge purported to follow the Judgment of a Division Bench of this Court in Halkhori Sahu v. Adit Sahu, 1964 BLJR 274 in which it was held in view of Section 47 of the Act, the raiyati interest of a tenant could not be put to auction-sale in execution of a decree obtained against him. Mr. L. K. Choudhary, however, submitted that the correctness of that view might be canvassed in light of the pronouncement of their Lordships of the Supreme Court in the case of Bhau Ram v. Baji Nath Singh, AIR 1962 S. C. 1476 which was a case relating to the validity of the Act passed for the State of Rewa recognising the principle of the law of preemption as being applicable to the territory of the State of Rewa as well. After the merger of the State in the Indian Union, the validity of that Act was questioned in view of the provisions of Article 19 (1) (f) of the Constitution. Their Lordships of the Supreme Court held that the Act recognising statutorily the customary law of pre-emption ran counter to Article 19 (1) (f) of the Constitution of India. Their Lordships observation at p. 1480 of the report runs thus:
"Ordinarily, if there was no law of pre-emption a vendor would be entitled to sell his property to anybody for any price that may be settled between him and the purchaser. This right is clearly restricted by the law of pre-emption which may in many cases result in a depression of the price which the vendor may otherwise be able to get for his property."
At p. 1481, their Lordships in conclusion observed further:
"In effect, therefore, the law of preemption based on vicinage was really meant to prevent strangers, i.e., people belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable, and the main reason therefore which sustained the law of preemption based on vicinage in previous time, can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire hold and dispose of property as now guaranteed under Article 19 (1) (f), for it is impossible to see such restrictions as reasonable and in the interest of the general public in the state of society in the present day."
Section 47 of the Act as amended reads thus:
"47. Restrictions on the sale of raiyats' rights under order of court: No decree or order shall be passed by any court for the sale of the right of a raiyat in his holding or any portion thereof, nor shall any such right be sold in execution of any decree or order:
Provided as follows:
(a) any holding or portion of a holding may be sold, in execution of a decree of a competent court, to recover an arrear of rent which has accrued in respect of the holding;
(b) any holding or portion of a holding may be sold, under the procedure provided by the Bihar and Orissa Public Demands Recovery Act, 1914 (B & O Act 4 of 1914} for the recovery of a loan granted under the Land Improvement Loans Act, 1883 (19 of 1883), or the Agriculturists' Loans Act, 1884 (12 of 1884), or otherwise by the State Government;
(c) nothing in this section shall affect the right to execute a decree for sale of a holding passed, or the terms of conditions or any contract registered, before the first day of January, 1903.
Explanation I:-- Where a holding is held under joint landlords, and a decree has been passed for the share of the rent due to one or more, but not all, of them, proviso (a) does not authorize the sale of the holding or any portion of the holding in execution of such decree.
Explanation II :-- Proviso (c) does not render valid any document which is otherwise illegal or invalid, or authorize a Court to take judicial cognizance of any such document."
Mr L. K. Choudhary has urged that Section 47. as it stands is an unreasonable restriction on the right of a decree-holder to proceed against the property of the Judgment-debtor which would have a market value otherwise and thus it acts as a curtailment of the right of a citizen of the Indian Union guaranteed under Article 19 (1) (f) of the Constitution. Article 19 (1) ff) stands thus:
"19. (1) All citizens shall have the right --
X X X X X (f) to acquire, hold and dispose of property; and x x x x x"
He has urged, in the next place, with reference to the history of the passing of the first Act in 1908 and the modifications introduced into the Act by subsequent amendments in 1938 and 1947, that sections 46 and 47 were part of of a general policy putting restrictions upon alienations of land, but Section 46 has been amended relaxing the restriction on the power of alienations and consequently the provisions of Section 47 restricting the power of the Court to sell the raiyati holding of a tenant in an unqualified form now cannot stand.
5. For his first contention, Mr. Choudhary, as I have already stated, has placed reliance upon the pronouncement of the Supreme Court in the case of Bhau Ram, AIR 1962 SC 1476 and the subsequent decision of the Supreme Court in the case of Sant Ram v. Labh Singh, AIR 1965 SC 314. The first decision struck down the Rewa Site Preemption Act, 1946, giving statutory recognition to the law of pre-emption in so far as it is based on vicinage, i. e., preferential right of a neighbour to the purchase of any immoveable property on account of contiguity of his own property to the property, the subject matter of the suit. As the observation quoted above would show, their Lordships held that such a restriction would be unreasonable in the present state of society. It is, no doubt, true that the subsequent decision of the Supreme Court in Sant Ram's case, AIR 1965 SC 314, has held the law of premption based on vicinage to be bad even in respect of customary law and in that it has been observed that the origin of the law of pre-emption, in so far as it is based on vicinage, need not be gone into but, nevertheless, the preferential right of a neighbour to purchase the land merely on account of vicinage has been held to be incompatible with Article 19(1) (f) of the Constitution. The result is that any law including that which has been in force since before the passing of the Constitution of India, such as the law of pre-emption, either customary or based on statute, must be subjected to the test of Article 19 and if the Court is satisfied that it is inconsistent with it in regard to the liberty of person, freedom of speech, freedom of movement, freedom of association of the right to hold and dispose of property, it may be struck down as bad law, as being violative of the fundamental right of the citizen.
Mr. Choudhary's contention is that once a decree has been passed in favour of a person, it is his legal right to execute it and have it satisfied by sale of any property of the judgment-debtor which will have a market value and even by putting the judgment-debtor in civil prison if the requirement of law in regard to either condition is fulfilled, as under Section 51, Code of Civil Procedure, which law in its turn must not run counter to the provisions in Part III of the Constitution of India relating to fundamental rights. The Advocate-General, who appeared in response to our request, has urged that if there were any general restrictions put upon the power of the decree-holders to satisfy his decree by proceeding against the property of the judgment-debtor, it would, no doubt, run counter to Article 19(1)(i) of the Constitution, but under Section 47 of the Act, there is no bar upon the power of the Court to sell the property of the Judgment-debtor in execution of a decree in general, but it is confined only to the raiyati interest of the judgment-debtor. Mr. Choudhary has urged that raivati interest is also a valuable right and has got a market value and the agriculturist in many instance may have no other property than his agricultural land. In these circumstances, therefore, if the legislature would debar him from seizing the agricultural property of the judgment-debtor, it would amount to a violation of the fundamental right of creditor to execute any decree for money which also is his property and which he has a right to hold and assign and which can have any meaning only when the decree-holder can satisfy his decree, by proceeding against the property of the judgment-debtor and have it auction sold in satisfaction of his decretal dues.
It may very well be that an attempt to put the Judgment-debtor in civil prison as a coercive method may not be successful if the requirements of Section 51 of the Code of Civil Procedure are not fulfilled and, in the next place, if valuable property, like the agricultural land, cannot be auction sold, the decree-holder will have poor satisfaction and the labour and expenses involved in obtaining the decree may prove to be absolutely futile. It is not that any legislature, even under the Indian Constitution, cannot put any restriction upon the sale either by private treaty or by auction of any particular class of land, but in that event when such a legislation is challenged, the person seeking to take advantage of it will have to satisfy the Court that such a restriction is reasonable and just in the circumstances, and in that case only the right conferred under Article 19(1)(f) can be qualified and the judgment-debtor's property may be saved from being sold in satisfaction of the decree. Mr. Lalnarain Sinha has not suggested any reasonable ground in justification of Section 47 in so far as it relates to lands of all classes of people in the district of Ranchi, raiyati land being even that of a millionaire, but the only ground, as I have said, which is urged in support of the validity of Section 47 is that it is only a partial qualification of the right of the decree-holder and not a total prohibition of his right to execute his decree by proceeding against other properties of the judgment-debtor. This, however, hardly supports the stand of the judgment-debtor for upholding the validity of Section 47 which, in terms, is a restriction incompatible with Article 19(1)(f).
6. Mr. Lalnarain Sinha, however, raised an ancillary point that the right of a decree-holder to execute the decree cannot be brought within the purview of Article 19(1) (f), because it does not affect his right to hold, dispose of or otherwise deal with his property, but Section 47 of the Act only lays down the decree shall not be executed in a particular manner. In my opinion, this argument cannot be upheld in asmuch as it has already been held that any curtailment of a right to enter into a contract of an individual on free terms to be settled bptween the parties amounts to the curtailment of the right to hold property. Unreasonable restriction upon the right of freedom of contract has thus been struck down as invalid even by the Supreme Court in the case >f Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd., 1954 SCR 674 at p. 725 = (AIR 1954 SC 119 at p. 135) in which the following observation occurs relating to the validity of Sholapur Spinning and Weaving Company (Emergency Provisions) Ordinance II of the 1950 replaced by Act XXVIII of 1950. By this Ordinance, the Sholapur Spinning and Weaving Mill belonging to the Company were to be taken over by management of directors appointed by the Central Government. The question was dealt with in that context.
"The questions will have to be considered and decided namely, (1) whether the impugned law has authorised the taking of possession or acquisition of any property and (2) whether what has been taken possession of or acquired is 'property' within the meaning of Article 31(2). Taking the second question first, there cannot be any doubt that the mills, machineries, stocks etc., of the respondent company are 'property' within the meaning of Articles 19 and 31, a contract of agreement which a person may have with the company and which may be cancelled by the directors in exercise of powers under the Ordinance will undoubtedly be 'property' within the meanine of the two articles."
The same view has been expressed by the Supreme Court of America in (1934) 290 U. S. 398, Home Building & Loan Association v. John H. Blaisdell and also Article 1, Section 10 of the Constitution wherein also restriction upon the freedom of contract has been held to be restriction upon the citizen's right to hold the property. This is a good analogy for holding that the contractual right is property at least when it is accompanied by a proprietary interest, vide Anan-da Behera v. State of Orissa, (1955) 2 SCR 919 = (AIR 1956 SC 17); Rameshwar Prasad v. Commissioners Land Reforms & Jagirs, Madhya Bharat (now M P), AIR 1959 SC 498, and Bombay Dyeing & Manufacturing Co. Ltd. v. State of Bombay, AIR 1958 SC 328. In the last mentioned case, it is clearly laid down that chose in action is property and hence right to hold a decree is property and it must be exericised unfettered by unreasonable restriction. In the present case, the decree is a valuable property but it could be held only in the form of executing it and realising the dues under the decree by putting to sale the property of the Judgment debtor. If this right is curtailed in any manner so far as the manner of execution of the decree is concerned, it is, undoubtedly restriction upon the power of the decree-holder to hold property and unless it is held to be a reasonable restriction consistent with the policy of the legislature to advance the interest of the community in general or a particular section of it, as provided in Clause (5) of Article 19 of the constitution referring to reasonable restrictions in the interests of any Scheduled Tribe, such a restriction must be struck down as unsupportable in the context of Articles 19(l)(f) of the Constitution. In my opinion therefore, Section 47, even as it stands, cannot be held to be good law after the coming into force of the Constitution of India.
7. Apart from the above, Mr. L. K. Choudhary also referred to the history of the Act which was passed in 1908. Section 46 of the Act provided as follows:--
"46 (1) No transfer by a raiyat of his right in his holding or any portion thereof,--
(a) by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent;
Provided that a raiyat may enter into a bhugut bandha mortgage of his holding or any portion thereof for any period not exceeding seven years.
(2) No transfer by a raiyat of his right in his holding or any portion thereof shall be binding on the landlord, unless it is made with his consent in writing.
(3) No transfer in contravention of Subsection (1) shall be registered, or shall be in any way recognised as valid by any court, whether in the exercise of civil, criminal revenue jurisdiction.
(4) At any time within three years after the expiration of the period for which a raiyat has, under this section, transferred his right in his holding or any portion thereof, the Deputy Commissioner may, in his discretion, on the application of the raivat, put the raiyat into possession of such holding or portion in the prescribed manner (5) Nothing in this section shall affect the validity of any transfer (not otherwise invalid) of a raivat's right in his holding or any portion thereof made bona fide before the first day of January. 1903."
In 1938. it came to be amended and then-stood thus:--
"46 (1) No transfer by a raiyat of his right in his holding or any portion thereof shall be valid to any extent except as provided in his section.
(2) An aboriginal raiyat or a raiyat who is a member of a scheduled caste may transfer his right in his holding or any portion thereof,
(a) by Bhugut bandha mortgage to a society registered or deemed to be registered under the Bihar & Orissa Co-operative Societies Act, 1936, for "a period not exceeding fifteen years, or to any other person for a period not exceeding seven years;
(b) by lease, to any person for a period which does not and cannot in any possible event, by any agreement, express or implied, exceed five years.
(3) An occupancy-raiyat, who is an aboriginal or a member of a scheduled caste, may transfer his right in his holding or a portion of his holding by sale or exchange to another aboriginal or to another person who is a member of a scheduled caste, as the case may be, and who is resident within the local limits of the police station area within which the holding is situate and with the sanction of the Deputy Commissioner, by gift residence.
(4)(a) An occupancy-raiyat, who is not an aboriginal or a member of a scheduled caste, may transfer his right in his holding or any portion thereof to any person who is resident within the local limits of the police-station area within which the holding is situate by sale, exchange, gift, will, mortgage or leave.
(b) A non-occupancy raiyat, who is not an aboriginal or member of a scheduled caste, may transfer his right in his holding or any portion thereof to the same extent as an aboriginal raiyat or a raiyat who is a member of a scheduled caste may transfer hi; right in his holding or portion thereof in accordance with Clauses (a) and (b) of Sub-section (2).
(5) If a raiyat transfers his holding or any portion thereof in contravention of the provisions of this section, or on the expiration of the period for which a raiyat has transferred his holding or any portion thereof in accordance with the provisions of Subsection (2) or Clause (b) of Sub-section (4) the Deputy Commissioner may, of his own motion or on the application of the raiyat, eject the transferee and place the raiyat in possession of the said holding or portion at any time within twelve years from the date of the transfer or from the expiration of the period of the transfer as the case may be (6) (a) If the mortgagee of any land mortgaged under this Section is legally liable to pay the rent of such land to the landlord and fails to do so, the mortgagor may deposit with the Deputy Commissioner the arrears of rent together with the costs of necessary for the transmission of the same to the landlord, and may apply to the Deputy Commissioner for the ejectment of the mortgagee and the restoration of the mortgaged land to the mortgagor.
(b) On receipt of such an application, the Deputy Commissioner, after making sue enquiry as he thinks fit may if he is of opinion that the mortgagee has wilfully neglected to pay the amount of rent in arrear, eject the mortgagee and restore the mortgaged land to the mortgagor, and the mortgage shall thereupon be deemed to "have terminated.
(c) The Deputy Commissioner shall cause to be transmitted to the landlord any sum deposited under Clause (a).
(7) No transfer by a raiyat in contravention of Sub-sections (2), (3) or (4) shall be registered or shall be in any way recognised as valid by any Court whether in the exercise of Civil, Criminal or Revenue jurisdiction.
(8) No transfer by a raiyat of his right in his holding or any portion thereof by sale exchange, gift, mortgage or lease shall be valid unless it is made by registered instrument.
(9) In this section the expression 'aboriginal' includes any person declared by the Governor, by notification, to be an aboriginal for the purposes of this section, and the expression 'scheduled caste' means any caste declared by the Governor, by notification, to be scheduled caste.
(10) Nothing in this Section shall affect the validity of any transfer, not otherwise invalid, of a raiyat's right in his holding, or any portion thereof, made bona fide before the first day of January, 1903."
As a result of the amendment of 1947, the Section provides :--
"46. (1) No transfer by a raiyat of his right in his holding or any portion thereof, (al by mortgage or lease, for any period, expressed or implied, which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement., shall be valid to any extent:
Provided that a raiyat may enter into a bhugut bandha mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B. and O. Act VI of 1935). for any period not exceeding fifteen years:
Provided further that --(a) an occupancy raiyat who is an aboriginal may transfer with the previous sanction of the Deputv Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another aboriginal who is a resident within the local limits of the area of the police station within which the holding is situate;
(b) an occupancy raiyat who is a member of the scheduled caste may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person who is a member of the scheduled caste and who is a resident within the local limits of the district within which the holding is situate;
(c) an occupancy-raiyat who is not an aboriginal or a member of a scheduled caste may transfer without the sanction of the Deputy Commissioner his right in his holding or any portion thereof to another person who is resident within the local limits of the district in which the holding is situate.
(2) A transfer by a raiyat of his right in his holding or any portion thereof under Sub-section (1) shall be binding on the landlord.
(3) No transfer in contravention of Subsection (1) shall be registered, or shall be in any way recognised as valid by any Court, whether in exercise of civil, criminal or revenue jurisdiction.
(4) At the time within three years after the expiration of the period for which a raiyat has, under Clause (a) of Sub-section (1), transferred his right in his holding or any portion thereof, the Deputy Commissioner shall, on the application of the raiyat, put the raiyat into possession of such holding or portion in the prescribed manner.
(5) Nothing in this section shall affect the validity of any transfer (not otherwise invalid) of a raiyat's right in his holding or any portion thereof made bona fide before the first day of January 1903, in the Chota Nagpur Division except the district of Manbhum, or before the first day of January, 1909, in the district of Manbhum.
(6) In this section, the expression 'aboriginal' includes any person declared by the State Government, by notification, to be an aboriginal for 'the purposes of this section and the expression 'scheduled caste' means any caste declared by the State Government, by notification to be a scheduled caste."
In 1955 (Act XX of 1955), a few rubel (sic) alterations were made and backward classes were also added to. Thus, the restriction to sell agricultural land has been relaxed further. The protection now granted to a member of the Scheduled Tribes or Scheduled castes or backward classes is different from the right of an occupancy raiyat of classes other than those mentioned in Clauses (a) and (b) of the second proviso to Sub-section (1). It is thus clear that the sanction of the Deputy Commissioner is required only when the land is to be sold by the members of the Scheduled Tribes Scheduled castes and backward classes, but no sanction is required when the occupancy raivat is not a member of the Scheduled Tribes, Scheduled castes or backward classes. A radical modification therefore, has been brought in regard to the members of the general community. The only common factor in all the three classes is that the vendee must be resident of a place within the local limits of the area of a police station in case of a member of the Scheduled Tribes: he must be a resident of a place within the local limits of the district within which the holding is situate in case of a member of the Scheduled Castes or backward classes and. likewise, the vendee must be resident of the place within the local limits of the district in which the holding is situate, in the case of the vendor being a member of the general community other than the three classes mentioned above. Section 47. as it stood originally reads thus:--
"47. No decree or order shall be passed by any court for the sale of the right of a raiyat "in his holding, nor shall any such right be sold in execution of any decree or order:
Provided as follows :--
(a) any holding may be sold, in execution of a decree of a competent court, to recover an arrear of rent which has accrued in respect of the holding;
(b) any holding may be sold, under the procedure provided by the Public Demands Recovery Act, 1895, for the recovery of a loan granted for the benefit of the holding under the Land Improvement Loans Act, 1883, or the Agriculturists 'Loans Act, 1884, or otherwise by the Local Government; and (c) nothing in this section shall affect the right to execute a decree for sale of a holding passed, or the terms or conditions of any contract registered, before the first day of January, 1903.
Explanation I. Where a holding is held under joint landlords and a decree has been passed for the share of the rent due to one or more, but not all of them, proviso (a) does not authorise the sale of the holding in execution of such decree, Explanation II. -- Proviso (c) does not render valid any document which is otherwise illegal or invalid, or authorise a Court to take Judicial cognizance of any such document."
It was modified in 1938, 1947 and 1955 in some minor details which are not relevant, but the underlying policy of prohibition of sale of a raiyat's right remained the same.
8. Mr. Choudhary has contended that sections 46 and 47 stood together originally as part of a general policy of putting restriction upon alienation of land without the sanction of the Deputy Commissioner whoever the vendor might be. In that context, Section 47 had a legitimate justification for its presence in the statute book inasmuch as if a person could not transfer his occupancy raiyati land without the sanction of the Deputy Commissioner, the Court also could not put to sale such property inasmuch as it would be inconsistent with the restriction on the transfer of land by private sales. Since, however, Section 46 has been drastically amended in the case of the occupancy raiyats of the general community, there is no reason whatsoever for maintaining the provisions of Section 47 in the original form putting complete restriction upon the power of the Court to sell raiyati lands in execution of a decree. The present position is that the member of a general community by a private sale can alienate his occupancy raiyati holding to anyone who is resident within the local limits of the district within which the holding is situate, but under Section 47 the Court is powerless to do so. The only conceivable ground on which this anomaly can be supported is that under Clause (c) of the proviso there is still a restriction on the right of the alienor because the purchaser may not be a resident of the district in which the holding is situate and the alienor is not free to sell it to any person and a similar restriction cannot be put on the power of the court in so far as bidders are concerned; and in that view of the matter Section 47 may be upheld as good law and not running to Article 19(1)(f) of the constitution. It was in consideration of this argument that the Division Bench thought it proper to frame a further question as to the validity of Clause (c) proviso in so far as it restricted the right of a raiyat to sell his raiyati interest only to a person who is resident of the district in which the holding is situate.
Mr. Lalnarain Sinha was requested by the Court to urge any point which he might put forward in support of the validity of this part of Clause (c) of the proviso, but he was unable to urge anything in support of the justification for such a restriction which is also covered by the above pronouncements of the Supreme Court in the two decisions. What is true of the grounds upon which the law of pre-emption is based is also applicable to a restrictive provision on the powei to transfer immoveable property contained in 'sections 46 and 47 of the Act. It may no doubt, be made clear that so far as the Scheduled Tribes. Scheduled Castes and backward classes are concerned, covered by Clauses (a) and (b) of the proviso, there may be reasonable justification as contained in Article 19, upon which it is not necessary to make any definite pronouncement but so far as the members of the community other than these are concerned, the restriction upon their power is analogous to the power of a seller contained in the law of pre-emption. If, therefore, the law of preemption has been struck down as invalid based upon vicinage, the reason will apply more strongly in the case of a resident of Chota Nagpur land who expects for it a high price. If the restriction of Section 46, Clause (c). of the second proviso, is maintained, it is obvious that a resident of a particular district in which the holding is situate may not necessarily pay as much price as a person out side that district, who may have more anxiety to purchase raivati holding in the district concerned. The transferor is thus put in a disadvantageous position without any justification for the continuance of this restriction. Mr. Lalnarain Sinha has urged that this question does not arise because, on the facts of this case, only the validity of Section 47 of the Act calls for a determination and Section 46, therefore, need not be considered. The answer to this, however, is that, in the first place, the Division Bench has formulated two questions for being answered and in the second place the argument of Mr. L. K, Choudhary that Clause (c) of the second proviso to Section 46 also necessarily is bound up with the policy underlying Section 47 and as such the restrictive provision of Clause (c) in so far as the alienor is bound to sell it to a resident of the district in which the holding is situate has sot to be considered.
9. The validity of Section 47 of the Act is shaken considerably with reference to a clear anomaly. Even assuming Section 46 to be a valid provision in its entirety it is clean that under this section, as it stands, sale has not been prohibited but only restricted to the vendee being a resident of the district within the local limits of which the holding is situate under Clause (c) of proviso 2 to Sub-section (1). Thus, the occupancy raiyat who may be the judgment-debtor will be able to convert his holding into cash although he may not get that amount of money as price which he would expect if the land would have an open market and would be sold to any purchaser irrespective of the place of his residence. Under Section 47, however, agricultural holding which has got a market value and is saleable at the option of the raiyats cannot be sold at the instance of the decree-holder, not even to the extent of the bidder being confined to the class of persons residing in the district within the local limits of which the holding is situate. This appears to be. therefore, a clear violation of the fundamental rights guaranteed to a citizen to hold his property. The judgment-debtor will have a merry time by selling his agricultural property at least to a resident of district where the holding is situate, but the same property will not be available to the decree-holder for the satisfaction of his decretal dues even in the restricted manner in which the property is likely to command a market in terms of Section 46 This may be either an act of oversight on the part of legislature even before the Constitution of India came into force or it may have been done deliberately on some rational ground which it is difficult to discover. As it is. however, after the coming into force of the Constitution with Article 19(1)(f) incorporated in it, such an anomalous position in law cannot be upheld and the invalidity of Section 47 comes to the fore even upon this ground, leaving aside the legality or otherwise of Clause (c) of the second proviso to Section 46fl) of the Chota Nagpur Tenancy Act.
10. Mr L. K. Choudhary has urged that the respondent-judgment-debtor is not a member either of the Scheduled Tribe, Scheduled Castes or backward classes with reference to the notification under the Constitution. Scheduled Castes Order. 1950 or Bihar notification A/T-1015/55-1092/R. dated the 7th February, 1956. vide Bihar Quarterly Recorder 1956-58, page 403. This shows that the Judgment-debtor is not of backward class. Learned Advocate-General has not challenged that position. In my opinion, therefore, the two questions referred to the Full Bench may be answered thus.
Question No. 1 :-- (Section 46 (I)(c) of the Act in so far as it restricts the sale of a raivati holding belonging to a person of a class other than Scheduled Tribes, Scheduled Castes and backward classes to the resident within the district in which the holding is situate, must be held to be invalid as being incompatible with the right of the seller as also of the purchaser under Article 19(1) (f) of the Constitution.
Question No. 2 :-- This question also must be answered against the respondents and it must be held that Section 47 of the Act, in so far as it puts a general restriction upon the power of a Court to put to auction sale in execution of a decree even the agricultural land of persons belonging to classes other than the Scheduled Tribes, Scheduled Castes and backward classes, is invalid as this law has now become incompatible, in the form it stands, with Article 19(l)(f) of the Constitution and must be declared to be ultra vires to the extent indicated above.
U.N. Sinha, J.
11. The question which can arise in this case is validity of Section 47 of the Chota Nagpur Tenancy Act, in view of the right guaranteed by Article 19(l)(f) of the Constitution of India. On this Point, I am of the opinion that the argument of the learned Advocate-General should be accepted. Section 47 does not appear to contain any restriction which militates against the guarantee given to citizens in Article 19 (I)(f) to acquire, hold and dispose of property. Going back to Section 46(1). second proviso, Clause (c) there is no restriction in this clause of the proviso, but the restriction is in the main portion of Sub-section (11 of Section 46. Clause (c) of the second proviso appears to be in the nature of an exception, as it confers a right, may be a limited one. If Clause (c) of the second proviso is declared to be invalid in view of Article 19(1)(f) of the Constitution, the restriction on transfer imposed by Section 46 (1) will still continue. Therefore, I will ans-swer the questions formulated by the Full Bench as follows : --
Question No. 1 -- Clause (c) oi the second proviso of Section 46(1) of the Chota-Nagpur Tenancy Act cannot be held to be invalid in view of Article 19(l)(f) of the Constitution of India.
Question No 2 -- Section 47 of the Chota Nagpur Tenancy Act cannot be said to be invalid as being incompatible with the rights guaranteed under Article 19(1)(f) of the Constitution of India.
G.N. Prasad, J.
12.I agree withmy learned brother, Misra. J.