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4. This appeal was in the first instance placed before S.B. Sinha, J., who was of the view that this case involves substantial question of law as to whether appellate court was right in reversing the judgment of the trial court on the ground that the sale deed executed in favour of the appellant by his vendor who was a member of the scheduled castes was hit by Section 46 of the C.N.T. Act. The learned judge was of the view that the case also involves consideration as to the effect of deletion of Article 19(1) of the Constitution of India by reason of 44th amendment of the Constitution and in the light of doctrine of eclipse. The case was referred to Division Bench for hearing. The learned Judges constituting the Division Bench were of the impression that the decision in Budhni Mahatain's case (supra) was given after Constitution 44th Amendment and that the learned Judges who decided Bhudhni Mahatain's case had not considered the effect of amendment of the Constitution by 44th Amendment. The case was, therefore, referred to a larger Bench for an authoritative decision.

5. Bhudhni Mahantain's case was no doubt decided after 44th Amendment Act which came into force on 20.6.79. Division Bench in Bhudni Mahatain's case was not obvious of the 44th Amendment Act. Constitution 44th Amendment Act had no bearing on the question which came up for the consideration before the Division Bench in Budlmi Mahatain's case. It is well settled that 44th Amendment Act was prospective in operation and not retrospective. Therefore, any law enacted prior to 20.6.79 (the date of 44th Amendment came into force) was open to challenge on the ground of contravention of fundamental rights as guaranteed under Article 19(1)(f) of the Constitution.

As held in AIR 1964 SC 1515, Article, 318 would apply even to Acts which have been struck down as invalid by judicial decisions.

Chapter VIII (Sections 46, 47, 48, 49; Chapter IX Sections 71, 71A, 718 and Chapter XVII - Sections 240, 241, 242 of the Chotanagpur Tenancy Act, 1908 are included in the 9th Schedule at item No. 209). In view of the inclusion of the Act in the 9th Schedule, Section 46 is now completely immune from attack for violation of Article 19(1)(f) of the Constitution.

9. This answers the questions referred to the Full Bench. It was stated that the learned Judges who referred this case to Full Bench were under the impression that decision in Budhni Mahatain's case was given without considering the effect of 44th amendment of the Constitution. That is not so since 44th Amendment was considered in para 11 of the judgment reported in 1984 PLJR 399 wherein it has been observed that "court was not called upon to decide the effect of Constitution 44th Amendment Act, 1978". It appears from para 11 that the learned Judges deciding Budlini Mahatain's case were under the impression that Constitution 44th Amendment Act was retrospective, but probably the offending provision under the C.N.T. Act was considered to be post-Constitution law. It does not appear as to why observations in paragraph 11 of the judgment were made.

10. However, we have also considered the question whether decision in Budhni Mahatain's case declaring proviso (b) of Section 46 of the C.N.T. Act ultra vires to Article 19(1)(f) as it stood prior to 44th Amendment Act was correct.

11. We have after thorough consideration of the matter came to the conclusion that the decision was not correct. The conclusion holding Section 46 as ultra vires, is based on the decision in 1969 BLJR 134 Bhageran Thakur v. Kebal Singh. In Bhageran Thakur's case, the validity of Sections 49(c) and 49(m) of the Bihar Tenancy Act was considered. The Act was declared ultra vires to Article 19(1)(f) because the said section was not protected by Article 19(1)(f) as stood prior to 44th amendment. Restrictions imposed by Sections 49(c) and 49(m) was intended to protect backward classes also. It was held that the backward classes could not be clubbed with scheduled tribes under Article 19(1)(f). Their Lordships held that on the same parity of reasons on the commencement of the Constitution restrictions imposed by proviso (b) of Section 46 of the Act in relation to scheduled castes became modified and devoid of any legal force and/or binding effect. Bhageran Thakur's case related to backward classes and this case and Budhni Mahatain's case relate to members of scheduled castes. Their Lordships did not consider single decision of the Supreme Court while deciding such a vital issue as constitutional validity of a pre-Constitution law. I am constrained to observe that direct decision of this Court in Shashtripado's case, AIR 1967 Patna 25 which upheld the constitutional validity of Section 46(1)(c), was not brought to the notice of their Lordships deciding Budhni Mahatain's case. In Shastripado's case, Mahapartra and A.B.N. Sinah, JJ, held as follows: