Patna High Court
Mahabir Prasad And Ors. vs The State Of Bihar And Ors. on 6 October, 1975
Equivalent citations: AIR1976PAT256, AIR 1976 PATNA 256
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT S. Sarwar Ali, J.
1. These two applications have been heard one after the other. Since several points raised in these applications are common, they are being disposed of by a common judgment I propose, after giving necessary facts of each case, to deal with the constitutional and legal points raised first, before examining their impact on the two oases. In dealing with those questions I shall notice the arguments of the learned counsel appearing in both the writ applications. Facts of C. W. J. C. No. 74 of 1974:
2. Petitioner No. 1 in this case is father of petitioners Nos. 3 and 4, petitioner No. 3 being major and petitioner No. 4 being minor. Petitioner No. 2 is the wife of petitioner No. 1. According to the petitioners petitioner No. 1 was the Karta of the joint Mitakshara family consisting of himself, his wife and his two children. For the sake of convenience and management of the joint family properties petitioners separated from each other and each of them got l/4th share in the joint properties. In the year 1967 a return was filed by petitioner No. 1 under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 (the 'Act'). This was registered as case No. 34 of 1967-68. This proceeding, it is asserted, is still pending. The Act was amended by Bihar Act 1 of 1973 and Bihar Act 9 of 1973. Various amendments have been introduced by these Acts in the parent Act. The main effect of these amendments is the lowering of ceiling prescribed under the parent Act and introduction of the concept of family (as defined in the Act), as a unit for the purpose of determining the ceiling. After the amendment the petitioner filed a fresh return. According to the petitioners, without complying with the provisions of Section 8 and Rule 8 of Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Rules (the 'Rules), Draft publication (An-nexure-2) has been made under Section 10 (1) of the Act. Subsequently, there was a final publication of the draft statement (Annexure-3). The validity of Section 2 (i) of the Bihar Act. 1 of 1973 and the various actions taken by the authorities including Annexures 1. 2 and 3 are under challenge. Facts of C. W. J. C. No. 1460/74:--
3. In this writ application there are five petitioners. Petitioner No. 1 is the father of petitioner No. 3. Petitioner Nos. 2 and 3 are the wives of petitioner Nos. 1 and 3 respectively. Petitioner No, 5 is an idol, Sri Ram Jankiji Maharaj, According to the petitioner the family of Petitioner Nos. 1 to 4 was a joint Hindu family governed by Mithakshara School of Hindu Law. Rai Bahadur Bachu Pra-sad Singh father of petitioner No. 1, was head and karta of the family till his death in the year 1957. In the year 1962 after the death of Sri Bachu Prasad Singh a private partition took place among the members of the joint family by which the properties were divided by metes and bounds, petitioner Nos. 1 to 4 having been allotted l/4th share each. These petitioners are claiming to be in possession of lands allotted to the share of each of them in their own right. The petitioners further aver that by common agreement and with consent of all concerned there was a dedication of about 39.69 acres of land on 25-3-1956 by a registered deed of Samarparnama to Sri Ram Janki Ji Maharaj, the family deity. Petitioner No. 5 is the Shebait of the deity. The deity, it is said is in possession of the dedicated lands. Some portions of the land belonging to the petitioners and the buildings thereon constitute the homestead of the petitioners. On a portion of the land there is a cold storage. Petitioner No. 1 filed a return in pursuance of the provisions of the Act on 4-7-1973. On 15-3-1974 the Additional Collector Patna, (respondent No. 2) passed an order holding, on the basis of verification report of the revenue staff, that petitioner Nos. 1 and 2 were entitled to possess 25 acres of land and that petitioner Nos. 3 and 4 were entitled to hold another 25 acres. Since according to the order option under Section 9 of the Act had not been exercised by the land-holders certain lands as described in Schedules A and B were permitted to be retained by them and the lands mentioned in Schedule C, it was observed, may be declared as surplus land. A draft statement under Section 10 of the Ceiling Act was directed to be prepared and published according to the rules. A copy of the notice in pursuance of this order is Annexure-9, This Annexure does not indicate that any notice was to be served on Petitioner No. 3, the notice being addressed only to petitioner No. 1. Apart from the question of constitutional validity of Section 2 (1) of Act 1 of 1973, learned counsel for the petitioners challenged the legality of the various actions taken on several grounds which shall be noticed hereinafter. Validity of amending Act 1 of 1973.
4. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, being Bihar Act 12 of 1962, having received the President's assent was published in Bihar Gazette Extra-ordinary on 19-4-1962, The Act was, as the preamble indicates, and so do its provisions, to provide for fixation of ceiling and acquisition of surplus land by the State. Land-holder was defined to mean a person "who holds land as a raiyat and under raiyat and includes the mortgagee of land in possession". The section, definition and explanation to this definition is as follows:--
"2 (g) "Land-holder" means a person who holds land as a raiyat or as an under-raiyat and includes a mortgagee of land with possession;
Explanation: (i) A member of an undivided Hindu family having or being entitled to a share in land shall be deemed to be a land-holder for the purposes of this Act as if there had been partition in the family immediately before the commencement of this Act.
(ii) In this clause, the word 'person' Includes any company, institution, trust, association or body of individuals whether incorporated or not."
To give a corresponding benefit to persons not being members of Hindu undivided family a provision was made in their cases permitting transfer of land held by a land-holder to certain specified relations. The effect of this provision was to put land-holders belonging to Dayabhag School of Hindu Law, Muslims, Christians etc., at par with members of Hindu undivided family in relation to the ceiling law.
5. Act 1 of 1973 introduced Section 2 (ee) defining family which is aa follows:--
"Family means and includes a person, his or her spouse and minor children.
Explanation: In this clause the word 'person' includes any Company, Institution, Trust, Association or body of individuals whether incorporated or not".
Section 4 fixes the ceiling area of land for one family consisting of not more than five persons. Section 5 (1) of the Act after amendment is as follows:--
"It shall not be lawful for any person or family to hold, except as otherwise provided under this Act land in excess of the ceiling area.
Explanation: All lands owned or held individually by the members of family or jointly by some or all of the members of such family shall be deemed to be owned and held by the family."
6. Learned Counsel for the petitioners contended that the concept of the family as known to the Mithakshara School of Hindu Law has been destroyed by the artificial definition introduced by Act 1 of 1973. It thus results in discrimination. Although attack on the ground of violation of Article 14 is not permissible, the Court can and should strike down the provision, the same being contrary to the principles of equality as contained and enjoined in the preamble to the Constitution. The argument, in my view, is clearly misconceived and is indeed contrary to what has been settled by the Supreme Court. I shall only refer to two of the Supreme Court cases in this context.
7. In re, Berubari Union and Exchange of Enclaves (Special reference of 1 of 1959) the Supreme Court in its advisory opinion, speaking through Gajendragadkar, C. J., observed as follows: (AIR 1960 SC 845 at 856):
"28. There is no doubt that the declaration made by the people of India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, "a key to open the mind of the makers" which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the preamble is not a part of the Constitution, and, as Willoughby has observed about the preamble, to the American Constitution, "it has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted."
29. What is true about the powers is equally true about the prohibitions and limitations."
8. In the Kesavananda Bharati Sripadagalvaru v. State of Kerala, (AIR 1973 SC 1461) the correct role of the preamble has been considered in a number of judgments. The view expressed in Berubari's case (AIR 1960 SC 845) has been substantially accepted in this decision except that the observation in that judgment that preamble is not a part of the Constitution has not been accepted. Ray, J, (as he then was) after noticing the Berubari's case and other cases came to this conclusion:
"The Preamble is properly resorted to where doubts or ambiguities arise upon the words of the enacting part. If the enacting words are clear and unambiguous there is little room for interpretation, except the cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the preamble. This is the view of Story, The preamble can never be resorted to, to enlarge the powers confided to the general government. The preamble can expound the nature, extent and application of the powers actually conferred by the Constitution and not substantively create them."
Justice Palekar held:--
"Moreover the preamble, it is now well settled, can neither increase nor decrease the power granted in plain and clear words in enacting part of the Statutes."
Dealing with the same aspect of the matter and after holding that preamble is part of the Constitution Khanna, J., observed:--
"As observed by Story on Constitution, the preamble can never be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the power as actually conferred by the Constitution, and not substantively to create them".
The observations already extracted from Berubari's case have been approvingly quoted by the learned Judge in Paragraph 1485. Mathew, J., also in Paragraph 1633 speaking of the role of the preamble subscribed to the same view. I have found nothing in the judgment of the other learned Judges which would indicate that they have taken a view contrary to what has been stated by Gajendragadkar, C. J., in Berubari's case.
9. It is thus clear that the preamble cannot be regarded as a source of substantive power nor can it put limitations on the power that is legitimately exercisable by a legislature. Tested in this light it is not possible to hold that the concept of equality as expressed in the preamble having been allegedly violated, the provision of Act 1 of 1973 is unconstitutional or ultra vires on that ground.
10. The next contention raised on behalf of the petitioners is that the definition of the family does not advance the principles of Article 39 (a) and (b) of the Constitution. Consequently the amending legislation must be held to be not covered by the Directive Principles of the State Policy, In this context the learned counsel contended that widowed grand-mother and widowed daughter-in-law were, as a result of this provision, even deprived of maintenance and mere subsistence which they were entitled to before the amending law.
11. Before considering the argument whether the Directive Principles of State Policy are fulfilled by the amending legislation, or the legislation as stands after amendment, it would be sufficient to observe that the argument that those who are entitled to maintenance under the Hindu law will be deprived of the same because of the lowering of the ceiling is not correct. The ceiling law does not either directly or indirectly purport to extinguish any such rights. The only effect may be that the property against which the said right was enforceable may decrease in area. Thus, in my view, it is a misconception of the correct legal position to say that the rights of maintenance holders (whoever they may be) under the Hindu law has been extinguished as a result of the introduction of the concept of family by the amending Act or by lowering the ceiling.
12. Coming to the main contention, I would reiterate what has already been held by this Court in Mahanth Daya Ram v. State of Bihar, (1975 BBCJ 667). It has been clearly held there that the Act has been enacted to give effect to the Directive Principles of State Policy. Learned counsel did not contend that the Parent Act was not in pursuance of the Directive Principles. He contended that the Court must look at the amending provision alone and hold that the amending provision did not fulfil the Directive Principles of State Policy. Thus the learned counsel wants this Court to look at the amending provision in isolation. This, in my view, is not a correct approach. What must be seen is whether even after the amendment the Act continues to conform to the Directive Principles. If it does the principles contained in Article 39 are fulfilled. The amending provision may be compared to a piece in jigsaw puzzle. It is only when the piece is fitted in its proper place that the true picture can be discerned. It is therefore, not possible, in my view, to look at the definition in isolation. That would not be a correct legal approach.
13. In my opinion, however, whether the amending provision is looked at in isolation, or the amended Act is examined as a whole, the result is the same. The purpose of the relevant provisions of the parent Act was to fix a ceiling on the area of land which could be held by a land-holder. The excess area was to be acquired by the State for the purpose of disposal as envisaged in the Act. Section 27 deals with the disposal of the surplus land. The original Section 27 has been amended by Section 10 of Bihar Act 1 of 1973. The section as stands today need not be quoted, but it is quite clear that the section contemplates settlement of surplus land to the members of scheduled caste, scheduled tribe, backward class and other poorer sections of the community, as well as those who have or have been prepared to lay down their lives for the country, having been either killed in action or having served in the armed force. It is thus clear that the acquisition of surplus land and disposal thereof to the class of persons as noted above subserves the policy laid down in Directive Principles of the State-Policy. The introduction of the definition of family only result in lowering down the ceiling and thereby enabling the State to be in a position to acquire more lands under the provisions of the amended Act. Any provision which aims at and secures land, for the purpose of distribution among the poorer, weaker, and deserving section of the community cannot but be held to be in pursuance of Directive Principles of State Policy.
14. As an additional reason for upholding the validity of the impugned provisions reference may be made to Article 31-B of the Constitution. It states:--
"31-B. Without prejudice to the generality of the provisions contained in Article 31-A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act. Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent legislature to repeal or amend it, continue in force."
It is accepted by both sides that the two amending Acts have been included in the ninth Schedule. It is, therefore, clear that neither the parent Act nor the amended Act can be challenged on the ground of violation of fundamental rights or because they are inconsistent with Articles 14, 19 or 31 of the Constitution. Learned counsel appearing in one of the applications contended that Article 31-B of the Constitution would only apply to such laws as were enacted. In pursuance of the Directive Principles aforesaid, I do not find merit in this contention. First, I have already held that the amending law does fulfil the Directive Principles of State Policy, Moreover, as a matter of construction of Article 31-B it would be wrong to say that although a law has been included in the 9th Schedule it is open to the Court to examine whether it fulfils the requirement of that provision of Directive Principles of State Policy. The language of Article 31-B is clear and the meaning is plain. It says that no Act etc., shall be deemed to be void or ever become void on the ground that such Act etc., is inconsistent with or takes away or abridges any of the rights conferred by Part III or any provision of the said Part. To read the limitation as was suggested is not justifiable on any well-recognised principle of Construction, Legislative Competence:--
15. Sri Kailash Roy learned counsel for the petitioners in C. W. J. C. No. 1460 of 1974 contended that since the definition of family, in various ways, conflicts with the concept under the Hindu law the State Legislature was not empowered to so legislate as to destroy that concept. The argument really means that there was no legislative competence in the State Legislature to enact the law.
16. This argument also, in my opinion, is misconceived. The legislation is covered by Item 18 of List II of the Seventh Schedule which is "Land that is to say right in and over land ...". It is also covered by Item 42 of the List III which is "Acquisition and requisition of property". The impugned legislation being clearly covered by the entries aforesaid the question of lack of legislative competence does not arise. There is no encroachment, not even incidental, on any Item of List I. Item 5 of List III is as follows:--
"Marriage and divorce: infants and minors, adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this constitution subject to their personal law."
Even if the legislation could be said to be one under this Item of the List (which it is not) and further assuming that it is repugnant to the provisions of Hindu Law, the assent of the President having been obtained in respect of the parent Act as also the amending Acts, the legislation cannot be said to suffer from any infirmity in view of the clear provisions of Article 254 clause (2) of the Constitution.
Section 8 of the Act and Rule 8 of the Rules:
17. Section 8 (1) of the Act is as follows:--
"8 (1) Whether it comes to the notice of the Collector that any land-holder holds land in excess of the ceiling area or has not submitted the return within the period specified in the notice, or the extended period, under Section 6, or has submitted a return containing incorrect particulars, the Collector shall cause a notice to be served on the land-holder or his guardian, if he is a minor or person of unsound mind, directing him to submit the return with the necessary or correct particulars within sixty days of the service of such notice."
The contention raised on behalf of the petitioner is that Section 8 (1) requires that even if the Collector is of the view that a land-holder has submitted a return containing incorrect particulars he has to issue notice directing him to submit return with necessary or correct particulars. The provision, it is said, is mandatory. If the Collector does not follow the provision it invalidates all subsequent steps taken by him including the preparation and publication of the draft statement under Section 10 of the Act. In relation to Rule 8 it is contended that verification has to be made not only with reference to any reports submitted to the Collector but also with reference to upto-date rent receipts and other relevant revenue records including the record of right maintained by the Collector. At this stage also the Collector has to hear the land-holder concerned. The failure to comply with the requirement of Rule 8 invalidates all subsequent actions taken by the Collector,
18. The question whether the subsequent actions taken by the Collector is invalid or not does not depend merely on the directory or mandatory character of these provisions. One thing, however, is clear whether the section and the rule be directory or mandatory they have to be complied with. Even directory provisions are meant to be followed and not to be ignored. The crucial question, however, is as to the effect of the , failure to comply with these provisions.
It is not the non-compliance of every provision which renders the action taken in contravention thereof a nullity. The nature, scope and object of the power and its effect on the rights of the person concerned is relevant. One of the tests is that if the provision is based on grounds of public policy and cannot be waived, its contravention renders the action taken a nullity. Not so if it is capable of waiver. (See Dhirendra Nath Gosai v. Sudhir Chandra Ghosh, AIR 1964 SC 1300). In the instant case the aforesaid provisions are only for the purpose of determining whether, prima facie, the land-holder possesses land in excess of the ceiling area. Any order passed under Section 8 or enquiry held under Rule 8 does not finally determine the rights of the parties. Section 10 contemplates publication of draft statement. After the publication and the service of the same on the land-holder he has a right to file objection. That objection, as laid down in Section 10 (3), has to be disposed of not only after giving an opportunity to the land-holder of being heard but also after affording him an opportunity of adducing evidence. It is the order passed after complying with the provisions of Section 10 (3) which finally determines the rights of land-holder so far as the Collector is concerned. The order passed under Section 10 (3) is itself subject to appeal and revision. It is thus clear that a land-holder does not suffer any irreparable injury if the provisions of Section 8 and Rule 8 are not complied with. The prima facie determination by the Collector, even without following the above provisions does not, therefore, in my view, invalidate the action taken by the Collector under Section 10 (1) of the Act. I am also of the opinion that the failure to comply with the provisions aforesaid is capable of waiver by the land-holder and for the reason also the effect of non-compliance of Section 8 or Rule 8 will not render subsequent proceedings under Section 10 of the Act nullity in the eye of law.
19. Reference was made by learned counsel for the petitioners to paragraph 16 of the judgment of a Bench of this Court in Motilal Padampat Sugar Co. v. State of Bihar, (AIR 1973 Pat 47). What has been stated in that paragraph only emphasises that the provision of Rule 8 is meant to be followed. It does not decide as to what is the effect of non-compliance thereof. The view that I have taken is, therefore, not in any way in conflict with the aforesaid decision.
20. One further observation is called for in this context. Rule 8 requires the Collector to check and verify with reference to the rent receipts and other relevant revenue records. It has come to our notice that in several cases the documents aforesaid show that more than one person is land-holder, yet notice is given only to one of them on the assumption that the land which constitutes separate jamabandi is really the land of the land-holder to whom notice has been given. Even if it be open to the Collector to proceed on the prima facie assumption that such is the correct position, it appears to me that it would be expedient even at that stage to give notice of the draft publication to all those who stand recorded in the records of the Collector, I say so because if no such notice is given and a determination is made only in the presence of the person to whom notice is given, the other persons in whose name the revenue records stand may be entitled to file claim under Section 15 (3) of the Act In actual practice there would be very few cases where such claims are not made. The issue of notice as suggested would in many cases practically eliminate the second round of litigation which is likely to result if no such notice is given. I feel that what I have stated shall lead to early implementation of the ceiling law,
21. There is one other reason why notice should be given, even in the case of Hindu joint family to adult members of the joint family who have present interest in the property. It is conceivable that they may possess some lands which is not joint family land. If separate receipts are issued in respect thereof, non-issue of notice to such adult members will only result in delaying the implementation of the law, as it is obvious that such members will file objection under Section 15 (3) of the Act.
Effect of partition:
22. Learned counsel for the petitioners said that since according to their cases, there has been partition, for the purpose of ceiling law, irrespective of the fact whether a person is major or minor he has to be treated as a separate unit. In my view the contention does not appear to be correct. Family has been defined to include a person, his or her spouse, and minor children. Section 5 creates family as a unit for the purpose of the ceiling law. Explanation to Section 5 makes it clear that the lands held by the family either individually or jointly shall be deemed to be owned and held by the family. It is thus clear that partition amongst the members of the family cannot do away with the effect of definition of the family as already noticed. It is thus clear that whether there is a partition or not the lands held by a person, his or her spouse and minor children will have to be treated as one unit for the purpose of determining whether any land is held by the family, as defined, in excess of the ceiling area.
23. The position, however, is different go far as major members of a joint family are concerned. If in a joint family, as understood in the Hindu law, there are major members having present interest in the property, they have to be treated as a separate unit for the purpose of the ceiling law. tO illustrate if in a joint Hindu family there is a father, his two minor sons and two major sons and the family holds, say, 45 acres of class I land, the position would be that for the purpose the ceiling law the father and the two minor sons constitute a family and are to be treated as one separate unit entitled to 15 acres. The two major sons would be entitled to 15 acres each. Thus in the instant case the joint family would not be holding land in excess of the ceil ing area.
24. Sri Kailash Roy contended that unless minor children and spouse are treated as separate units after partition, the Act would not be workable. Who could, he said, be given notice? How will the surplus be determined and as to which portion of the land of various persons, who were separate in status, would be declared surplus are all matters on which the law is silent. It is true that there would be some practical difficulties in such a situation, but I do not think that the Act is unworkable. If there were clear provisions it would have been better. But in the absence of clear provision on equitable principle the surplus land will have to be declared in proportion to the land held by the individuals concerned. Their right to exercise option will also be in the same proportion. Here also one further observation may be made. Where the revenue records do indicate that the minors are assessed to and paying separate rent it would save a lot of complication if notice in the first instance is given to all such persons.
Homestead and pasturage;
25. Sri Kailash Roy contended that for the purpose of determining the ceiling area homestead and pasturage has to be excluded from consideration. He contended that in Section 4 of the Act while orchard is mentioned homestead and pasturage are not mentioned. Further according to him there is no provision for compensation for homestead in the Schedule Part I of the Act.
26. Land has been defined in Section 2 (f) as follows:--
"(2) (f) -- 'land' means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, Kharhar or pasturage or the homestead of a land-holder. Explanation: 'Homestead' means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any court-yard, compound attached, garden, orchard and out-building and includes any out-building for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house."
A mere reading of the definition is in my view, conclusive in the matter. The definition clearly says that land includes the homestead of land-holder (as defined in the explanation). When the definition specifically says that homestead is indicated within the expression 'land', it is impossible to hold that it is not. I am also not prepared to accept the contention that homestead does not come within one of the clauses mentioned in Section 4. Section 4 (d) is as follows:--
"4 (d) thirty acres equivalent to 12.141 hectares of land, other than those referred to in Clauses (a), (b), (c), (e) and (f) or land which is an orchard or used for any other horticultural purpose (hereinafter referred to as class IV land)."
It is, therefore, clear that all those lands which are not covered by Clauses (a), (b), (c), (e) and (f) of Section 4 are included in Clause (d). The mere fact that there is a specific mention of orchard or land used for any other horticulture purpose in Section 4 (d) does not lead to the conclusion that other lands are excluded from this clause. From this conclusion it necessarily follows that the schedule does prescribe compensation for homestead, the same being class IV land, Endowments and trusts:--
27. Sri Kailash Roy said that in his case petitioner No. 5 is a deity and, therefore, has to be treated as a separate unit. There can be no doubt that if there Is a religious or charitable trust or en-
dowment the same has to be treated as a separate unit. The lands belonging to such endowment and trust cannot be tagged on to the land of either the dedicator, the manager, Shebait, trustee or the mutawalli. This conclusion follows from Section 4 which creates family as a unit. For the purpose of Section 4 such trust or endowments must be held to be a separate and distinct person. The question, however, remains whether in the instant case there was really a trust. This is a question that has to be determined in the pending proceeding and cannot be decided in this writ application. If the existence of a valid endowment is found by the Collector, the said endowment will have to be treated as a separate unit for the purpose of the Act.
Industrial and Commercial buildings:
28. Sri Kailash Roy contended that the portion of land on which the cold storage is situate cannot be taken into consideration in determining the surplus land of the petitioner. The contention appears to be correct. "Land", as defined, means Land which is used or capable of being used for agriculture or horticulture purpose. Lands on which permanent structures or buildings stand (except homestead) are not lands which are used for agricultural or horticultural purpose, nor are they capable of being so used. Capable of use in this context does not mean that it is capable of use after removal of permanent structures. Of course, this would not apply to temporary or flimsy structure or lands which are waste or where shrubs etc., are presently growing. Annulment of transfer:--
29. Learned counsel for the petitioner contended that there were some transfers which were being illegally ignored. It is, therefore, necessary to examine the relevant provision being Section 5 (iii) of the Act (as amended). Section 5 (iii) is as follows:--
"5 (iii). The Collector shall have power to make enquiries in respect of any transfer of land by a land-holder whether made by a registered instrument or otherwise, made after the 22nd day of October, 1959, and if he is satisfied that such transfer was made, with the object of defeating, or in contravention of the provisions of this Act or for retaining, benami or farzi, land in excess of the ceiling area, the Collector may after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer and thereupon the land shall be deemed to be held by the transferor for the purposes of determining the ceiling area he may hold under this section."
A mere reading of the section which is clear and unambiguous leads to the following conclusions:--
(a) That transfers made prior to 22nd day of October, 1959 cannot be annulled under this provision. It is only transfers made after that date that are capable of annulment under the aforesaid provision.
(b) Annulment is possible only on existence of certain specified circumstances: They are--
(i) Where the transfer is benami or Farzi;
(ii) Where the transfer has been made with the intention of defeating the provision of the Act. Such intention must be present on the date of transfer;
(iii) Where the transfer is such as defeats the purposes of the Act. It is only on existence of the conditions aforesaid that annulment is permissible under the Act
30. Where the Collector is of the opinion that certain transfer should be annulled under Section 5 (iii) he has to issue notice to the transferee and such other person or persons who he may think should be given notice of the annulment proceeding. The parties in the annulment proceeding are entitled to have a reasonable opportunity of being heard.
31. I would, however, like to make it clear that for the purpose of annulling a transfer it is not always necessary that the proceeding should first be started and concluded before a transfer is annulled. In my view, when a proceeding under the Act is pending against a land-holder it would be permissible to issue notice to the transferee and other persons concerned and in that very proceeding decide the question whether such transfer comes within the mischief of Section 5 (iii) of the Act.
32. It is proper to state as to what would be the effect of annulment. In my opinion, when a transfer is annulled, or for that matter a family arrangement or partition is ignored, holding it to be benami or farzi or made with the intention of defeating the provisions of the Act, land covered by such transfer or family arrangement, has to be treated as land of the members of Hindu family, who can be treated as land-holder within the meaning of the Act.
Fresh proceeding after amendment of the parent Act:--
33. Sri B. C. Ghose contended that so far as his case is concerned there could not be a second proceeding after the amending Act came into force, as the previous proceeding was pending. I do not think the contention is correct. When the ceiling has been lowered the Collector is entitled under the provisions of Sections 6 and 8 to require the return to be filed and thereafter to determine, in accordance with the provisions of the Act, whether the land-holder concerned has surplus land. The pendency of the previous proceeding will not affect the jurisdiction of the Collector to proceed in accordance with the provisions of the amended Act. His jurisdiction is not ousted on account of the pendency of an earlier proceeding. Conclusion:--
34. I think it would be convenient to summarise my conclusions on the constitutional and legal aspects. They are:--
(a) The Preamble to the Constitution is not a source of substantive power, nor can the power legitimately exercisable by a competent legislature be held to be invalid and unconstitutional on the ground that in the exercise of power it has transgressed the principles laid down in the Preamble.
(b) The legislature had legislative competence to enact the impugned law.
(c) The impugned provision has been enacted to give effect to the Directive Principles of State Policy engrafted in the constitution:
(d) The Act, both before and after the amendment, is immune from challenge for violation of provisions of Part III of the Constitution in view of Article 31-B of the Constitution and in view of the fact that both the parent Act as also the amending Acts have been included in the ninth Schedule to the Constitution.
(e) Bihar Act 1 of 1973 is a valid piece of legislation and suffers from no constitutional infirmity.
(f) Section 8 of the Act & Rule 8 of the Rules, as at present enacted and framed, are meant to be obeyed, the violation of either of them, if raised at appropriate stage, and in appropriate cases, may entitle the court to interfere and require obedience to those provisions by the authorities.
(g) The infraction of Section 8 and Rule 8, aforesaid, however, does not per se invalidate subsequent actions validly, taken by the authorities nor does it invalidate the publication of draft statement Under Section 16 (1) of the Act. Objection if any, raised to the draft statement has to be disposed of in accordance with law.
(h) 'Homestead' & 'Pasturage' come within the definition of "land". They too must be taken into consideration while determining whether a land-holder has surplus land.
(i) The unit for the purpose of ceiling law is "family" as defined in Section 2 (ee). All major members of Hindu family, who are entitled to be treated as land-holder within the meaning of the Act, have to be treated as a separate unit for the determination of the surplus land under the Act, irrespective of the fact whether or not there has been a partition in the family.
(j) Notice should odinarily be issued to all such persqns who are entitled to be treated as a separate unit for the purpose of the Act, although they may be members of the joint family. The consequence of non-issue of notice will depend on the facts of each case.
(k) Religious or charitable endowments or trusts have to be treated as separate units for the purpose of the Act.
(1) Section 5 (iii) of the Act does not apply to transfers made on or before 22nd day of October, 1959, nor does it apply to bona fide transfers. It is only applicable where transfer is (a) benami or farzi, (b) made with the intention of defeating the provisions of the Act and (c) in contravention of the provisions of the Act. Such transfers can only be ignored after they have been annulled in accordance with the provisions of Section 5 (iii) of the Act.
(m) Even where a transfer is annulled, or for that matter any partition or family arrangement is legally ignored, being benami or farzi or made with the intention of defeating the provisions of the Act, the land covered by such transfer etc., has to be treated as land of the members of the Hindu family, who are to be treated as land-holder within the meaning of the Act.
(n) The fact that a proceeding prior to amendment introduced by Act 1 of 1973 is pending does not bar the initiation of fresh proceeding after the amendment. If such a proceeding is started it has to be disposed of in accordance with the provision of the Act as it stands after the amendment.
(o) Lands on which permanent jbuildings, other than homestead as defin-
ed in the Act, stand are not covered within the definition of 'Land' and have, therefore, to be excluded from consideration in determining the surplus area under the Act
35. Having given in brief my conclusion regarding the legal aspect I may point out what we have noticed a somewhat anomalous position under the Act. The right to exercise option has been given under Section 9 of the Act. This has to be exercised within 3 months of the publication of notice under Section 6 of the Act. It appears to me that the proper stage to permit option to be exercised is after the rights of the land holder have been determined by the Collector. It is, however, a matter "which requires the consideration of the legislature and the Government. C. W. J. C. No. 74 of 1974.
36. I have already dealt with the legal and constitutional objections raised by Sri B. C. Ghose on behalf of the petitioners, and have not found merit in any one of them. The original records of the case were also available and we have perused the order (which order was not made Annexure to the writ application), by which the Ceiling area has been determined. The order indicates that the two major members in the joint family have been treated as separate units. This is in conformity with the view that I have taken. There is thus no legal error in the order. In the writ application it is asserted that the lands of the petitioners are not Class I lands and have wrongly been so treated. At the time of argument the learned counsel did not raise this question presumably because it was a contentious question of fact and this Court, in the circumstances, would not have been inclined to go into factual aspects. I, therefore, do not express any opinion on the factual aspects. Subject to the observations made above this application is fit to be dismissed. C. W. J. C. 1460 of 1974:--
37. So far as this writ application is concerned I have found that there is no merit in the contentions raised except on two points, namely, (i) that a religious endowment hag to be treated as a separate unit, and (ii) that lands on which there are buildings other than homestead are not covered within the definition of "Land". The contention of the petitioners is that there is in existence a valid religious endowment, and further that on a portion of the lands of the peti-
tioners there are buildings which are not covered by the expression "Land". Since these are questions of facts I do not propose to determine them, particularly in view of the fact that the petitioners have right of objection under Section 10 (3) of the Act. Objection, if filed, will have to be determined in the light of the enunciation of law as laid down in this judgment. Subject to these observations this application is also fit to be dismissed.
38. Before finally concluding I may observe that I have summarised at one place not only the Constitutional aspect but also those relating to interpretation of various sections of the Act--aspects which arose during the course of argument in the firm hope and belief that a correct appraisal of the various provisions will help the authorities to so administer the law as would lead to speedy implementation of the ceiling law. It is needless to emphasise that it is only a correct implementation of the law which advances the will of the legislature, prevents avoidable litigation, and accelerate the distribution of land to the poor and deserving section of the community.
39. In the result, subject to the observations made, both the writ applications are dismissed, but in the circumstances without costs.
Nagendra Pbasad Singh, J.
40. I agree.