Patna High Court
Sm. Chhaya Devi And Ors. vs State Of Bihar And Ors. on 21 August, 1956
Equivalent citations: AIR1957PAT44, AIR 1957 PATNA 44, ILR 35 PAT 847
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Ramaswami, C. J: 1. In these cases, which have been heard together, a common question of law arises for determination, namely, whether the provisions of Bihar Act 30 of 1951 are constitutionally valid and operative. 2. In order to appreciate the question raised, it is necessary to set out the relevant sections of the statute. The title of the Act is "The Kosi Area (Restoration of Lands to Raiyats) Act, 1951". The Act begins with the following preamble: "Whereas it is expedient to provide for the restoration to former raiyats of certain lands which were sold for arrears, of rent or from which they were ejected for arrears of rent or which were treated as abandoned, between the 1st day of January, 1939, and the 31st day of December, 1950, in the absence of the raiyats due to floods in the Kosi river; 3. Section 1(2) of the Act provides that the Act Section 1(2) of the Act provides that the Act ''shall extend to such areas o f the districts of Bhagal-pur, Monghyr, Purnea and Darbhanga as may be notified, from time to time, by the State Government". Section 2 contains a number of definitions. Section 3 is important and must be set out in full: "3, If the holding of raiyat or portion thereof was sold in execution of a decree for arrears of rent or if a raiyat was ejected from a holding or portion thereof in execution of a decree passed under Sub-section (2) of Section 66 of the Bihar Tenancy Act, 1885, or if the holding of a raiyat or portion thereof was treated as abandoned under Section 87 of the said Act at any time" between the 1st day of January 1939, and the 31st day of December, 1950, and is in the possession of the landlord or any other person, the Collector may, if he thinks fit, of his own motion or otherwise, take steps for the restoration of such holding or portion thereof to the said raiyat". 4. Section 4 requires the Collector to give notice of the proceeding under Section 3 to the raiyat, the landlord and any other person interested in the holding or portion thereof. Section 5 provides that on the date fixed in the notice, the landlord or any other person may appear & object to the restoration of the holding or portion thereof on any one or more of the following grounds: "(a) that he has constructed any building or other structure of a permanent nature or planted any garden on the holding or any portion thereof before the date of commencement of this Act and that such building, structure or garden is of such a value that the restoration of the land covered by such building, structure or garden will be unfair; and (b) that he has excavated any tank or sunk any pucca well on the holding or any portion thereof before the date of the commencement of this Act'". 5. The section also requires the Collector to examine the objections and make such enquiry as he thinks fit, and drop the proceedings if certain conditions specified in the section are satisfied. Section 7 is of special importance. Section 7 enacts that if the proceedings are not dropped under Section 5, Sub-section (2), the Collector shall, (a) determine the land which is liable to be restored to the raiyat under the provisions of the Act, (b) determine the amount which will be payable by the raiyat as compensation, and (c) specify the person to whom the compensation shall be payable. The Collector is also empowered under the section to make an order that the raiyat shall be put in possession of the land. Section 7(2) enacts as to what are the principles on which the compensation is to be fixed. Section 7(2) must be quoted in full: "7(2) The amount to be determined under Clause (b) of Sub-section (1) shall be the cost of improvements, if any, effected on the holding or portion thereof which, the Collector may deem fair and equitable and,-- (a) where the holding or portion thereof is in possession of the landlord or any other person to whom it was sold in execution of a decree for arrears of rent-- (i) in the case of an entire holding or, if only a portion of a holding was sold, in the case of the whole of such, portion, a sum equal to the entire amount, if any, which the raiyat or any person having a claim against the raiyat may have withdrawn out of the proceeds of the sale of such holding or portion and the aggregate of the amount mentioned in the sale proclamation for the realisation of which the holding or portion was sold and of the amount of costs necessarily incurred by the landlord, or any person to whom it was sold, in connection with his application for delivery of possession; and (ii) in the case of a portion of a holding, if the entire holding was sold, or part of a portion, if only a portion of the holding was sold, such part of the sum mentioned in Sub-clause (i) as the Collector may deem fair and equitable after considering all the circumstances of the case including the value of the ' entire land sold 'and of the portion to be restored; (b) where the holding or portion thereof is in possession of the landlord as a result of execution of a decree for ejectment under Sub-section (2) of Section 66, Bihar Tenancy Act, 1885; a sum equal to the amount of arrears of rent interest thereon legally recoverable on the date of the institution of the suit for ejectment and costs of the suit mentioned in the decree passed under Sub-section (2) of Section 66 of the Bihar Tenancy Act, 1885; (c) where the holding or portion thereof is in possession of the landlord as a result of abandonment under Section 87 of the Bihar Tenancy, Act, 1885, a sum equal to the amount of arrears of rent with interest thereon legally recoverable on the date of abandonment; and (d) where the holding or portion of such holding is in possession of any person, other than the landlord or any person to whom it was sold in execution of a decree for arrears of rent, by settlement, sale, 'mortgage or any other kind of transfer, a sum equal to the amount of salami consideration money or, where there is no document of transfer or where no consideration money is mentioned, in the document of transfer, any amount that the Collector may deem fair and equitable in the circumstances of the case: Provided that in the case of a settlement, sale, mortgage or any other kind of transfer made or created at any time after the 31-12-1950, the - Collector shall hear the raiyat and the parties to the transfer and make such inquiry as he thinks fit in respect of the amount of the salami or consideration money mentioned in the document of transfer and, if he is satisfied that the amount was mentioned in the document with the object of obtaining a higher amount under this clause, determine the actual amount of salami or consideration money paid under the document". 6. Section 9 states as follows: "9. Notwithstanding anything to the contrary contained in any law for the time being in force, when any land is restored to a raiyat under the provisions of this Act,-- (a) any mortgage or charge created by the landlord or any other person in respect of such land or any portion thereof shall not be binding on the raiyat; and (b) all such rights as the raiyat had in respect of the said land and the incidents thereof before the sale, ejectment or abandonment shall revive." 7. Section 10 provides that any person who had no notice of the proceeding under Section 3 may apply to the Collector objecting to the delivery of possession of the land. The section further requires the Collector to investigate into the matter and after hearing; the parties to determine whether the land is liable to be restored to the raiyat under the provisions, of the Act. Section 16 gives the right of appeal to the aggrieved party against the order of the Collector restoring the land to the raiyat. Section 16(1) is in the following terms; "16. (1) From every order passed under this Act, an appeal shall lie, when the order was made (a) by the Collector of a district, to the Commissioner; (b) by any officer other than the Collector of the district, to the Collector of the district or to any officer specially empowered by the State Government, by notification to hear such appeals; and the decision-of the Commissioner or the Collector of the district or any officer so empowered shall be final." 8. The argument presented on behalf of the petitioners is that the statute contravenes the constitutional guarantee under Article 31(2). It was submitted by Mr. B. C. Ghosh that the fixing of com-pensation Under Section 7(2) is arbitrary & cannot be regarded as due compliance with the requirements of Article 31(2). It was contended that the Act was a permanent enactment and lands may be acquired under it many years after it had come into force. It was-argued that compensation was fixed under Section 7(2) of the Act with reference to the date of sale of the-holding in execution of the grant decree or with reference to the date of settlement of the holding by the landlord with the third party. It was submitted that the compensation should be fixed with reference to the value of the land at the time of the restoration to the raiyat in pursuance of the order passed by the Collector under Sections 3 and 7 of the Act. The argument advanced on behalf of the petitioners was based upon the decision of the Supreme Court in the State of West Bengal v. Bela Banerjee, 1954 SCR 558: (AIR 1954 SC 170)(A). In my view the argument presented by the learned Counsel for the petitioners is well founded. The present case is directly covered by the decision of the Supreme Court in 1954 SCR 558: (AIR 1954 SC 170) (A) and it must be held that the provisions of Article 31(2) of the Constitution have been violated. On behalf of the respondents the learned Government Advocate-also conceded that this was the true position; but the submission of the learned Government Advocate is-that the Act is saved by the Constitution (Fourth Amendment) Act, 1955, by which Article 31(2A) was inserted. Article 31(2A) which was added as a result of the Constitution (Fourth Amendment) Act, 1955, is in the following terms: "31. (2A). Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or requisitioning of property, notwithstanding that ft deprives any person of his property." 9. It was argued on behalf of the petitioners that the amendment Act was prospective and not retrospective and could not validate the provisions of Bihar Act 30 of 1951. The Bihar Act came into force on 3-10-1951, and the argument put forward on behalf of tile petitioners is that the subsequent amendment of Article 31 by the Constitution (Fourth Amendment) Act, 1955, could not validate the Bihar Act. It was submitted by learned Counsel that the Bihar Act was void for unconstitutionality and was dead and could hot be vitalised or revivified by the subsequent amendment of the Constitution. The argument "of learned Counsel is based upon the language of Article 13Q.) and (2) of the Constitution, which is in the following terms: "13. (1) AH laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void, (2) The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void." 10. The submission of learned Counsel was that Bihar Act 30 of 1951 was a post-Constitution law and not a pre-Constitution law and so the case is governed by Article 13(2). It was conceded by learned Counsel that in ihe case of a pre-Constitution law the Constitution amendment would have the effect of vitalising & revivifying the law. Learned Counsel made this concession in view of the decision of the Supreme Court in Bhikaji Narain Dhakras v. State of M. P. 1955) 2 SCR 589: ((S) AIR 1955 SC 781) (B). But the argument of learned Counsel was that in the case of a post-Constitution law the position was different and the effect of Article 13(2) was that in the case of such post-Constitutional law which contravenes the fundamental right the statute is void from its birth and cannot be vitalised by any subsequent Constitution amendment. The argument of learned Counsel as based upon the reasoning of Mahajan C. J. in Beh-ram Khurshed Pesikaka v. State of Bombay (1955) 1 SCR 613 at pp. 651-652: ((S) AIR 1955 SC 123 at p. 145) (Q. 11. I do not accept this argument as correct. A statute may be invalid because there is lack of legislative competence or lack of affirmative grant of power. A statute may also be invalid because there is a constitutional check imposed upon legislation. As a matter of principle, the invalidity arising in the former case cannot be cured by the subsequent grant of the affirmative power. But, in the latter case, the statute would become valid and enforceable once the constitutional prohibition is removed. The doctrine is stated as follows in Willoughby on the Constitution of the United States, Volume 1, at page 11: "The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature, and, if thus tested it is beyond the legislative power, it is not rendered valid, without re-enactment, if later, by constitutional amendment, the necessary legislative power is granted. However, It has been held that where an Act is within the general legislative po-w'er of the enacting body, but is rendered unconstitutional by reason of some adventitious circumstance, as for example, when a State legislature is prevented from regulating a matter by^ reason of the fact that the Federal Congress has already legislated upon tnat matter, or, by reason of its silence, is to be construed as indicating that there should be no regulation, the Act does not need to be re-enacted in order to be enforced, if this cause of its unconstitutionality is removed." 12. I think the same distinction applies to the Indian constitutional law. This distinction is implicit in the line of reasoning adopted by S. R. Das, J, in 1955-2 SCR 589 : ( (S) AIR 1955 SC 781) (B). In that case the question debated was whether C. P. and Berar Motor Vehicles (Amendment) Act, 1947 (Act III of 1948) was constitutionally valid. It was argued by the petitioners that the Act was inconsistent with the provisions of Article 19(l)(g) of the Constitution &, therefore, Act III of 1948 was void. It was, however, contended on behalf of the respondents that the inconsistency was removed by the Constitution (First "Amendment) Act, 1951, and the Constitution (Fourth Amendment) Act, 1955, and so the Amending Act (III of 1948) became operative and revitalised. It was decided by the Supreme Court that the contention put forward by the respondents was well founded and must be accepted. It was pointed out that the true effect of Article 13(1) was to render an Act, inconsistent with a fundamental right, inoperative to the extent of the inconsistency. The Act was not dead but it was merely overshadowed by the fundamental right and remained dormant. As regards non-citizens the Act was fully operative, but as against citizens the Act was not dead but remained in a dormant or moribund condition. The true position was that the impugned statute was eclipsed by the fundamental right and the effect of the Constitution (First Amendment) Act, 1951, was to remove the shadow and to make the impugned Act free from all blemish or in* firrnity. It was also held by the Supreme Court that the word "void" in Article 1,3(1) should -be interpreted to mean "void to the extent of the inconsistency with the fundamental- right" and the language of the Article made it quite clear that the entire operation of the inconsistent Act was not wiped out; the Act applir ed to past transactions, the rights and liabilities accruing therefrom, and continued, even after the commencement of the Constitution, to apply to all non-citizens. It is true that in 1955-2 SCR 589: ((S) AIR 1955 SC 781) (B) the Supreme Court was dealing with a pre-Constitution statute and the interpretation of Article 13(1). Counsel on behalf of the petitioners also said that there was some difference in the lajiguage-of Articles 13(1) and 13(2). But I do not think that the difference in the language is material so far as the interpretation of the word "void" in Article 13(2) is concerned. Indeed, S. R. Das, C. J. has specifically said in his judgment that the difference between the language of Articles 13(1) and 13(2) was not the basis of the decision of 1955-2 SCR 589: ((S) AIR 1955 SC 781) (B). I am inclined to think, on the contrary, that the reasoning of his Lordship is wide enough to cover the language of both Articles 13(1) and 13(2) of the Constitution. At pp 599-600 (of SCR): (at p. 785 of AIR) his Lordship states: "The true 'position is that the impugned law became as it were, eclipsed, for the time being by the fundamental right. The effect of the Constitu- tion (First Amendment) Act, 1951, was to remove the shadow and to make the impugned Act free from all blemish or infirmity. If that were not so, then it is not 'intelligible what 'existing law' could have been sought to be saved from the operation of Article 19(l)(g) by the amended Clause (6) in so far as it sanctioned the creation of State-monopoly, for, ex hypothesi, all existing laws creating such monopoly had already become void at the date of the commencement of the Constitution in view of Clause (6) as it then stood. The American authorities refer only to post- Constitution laws which were inconsistent with the provisions of the Constitution. Such laws never came to life but were still born as it were. The American authorities, therefore, cannot fully apply to pre-Con-stitution laws which were perfectly valid before the Constitution. But apart from this distinction between pre-Constitution and post-Constitution laws on which, however, we need not rest our decision, it must be held that these American authorities can have no application to our Constitution. All laws, existing or future, which are inconsistent with the provisions of Part in of our Constitution are, by the express provision of Article 13, rendered void 'to the extent of such inconsistency'. Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights and liabilities and they remained operative, even after the Constitution, as against non-citizens. It is only as against the citizens that they remained in & dormant or moribund condition." 13. It is important to notice that this decision of the Supreme Court is not based upon the distinction between pre-Constitution and post-Constitution laws. Secondly, there is the Important assertion that the American authorities which refer to post-Constitution laws as being still born and as not having come to life do no* apply to the Indian Con-stitution. It is also important to observe that his Lordship the Chief Justice has applied the doctrine of eclipse not merely to existing laws but also to future laws. At pp. 599-600 (of SCR): (at p. 785 of AIR) his Lordship states: "All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution are, by the express provision of Article 13, rendered void 'to the extent bf such inconsistency". Such laws were not dead for all purposes." In other words, this decision of the Supreme Court I clearly supports the view that the expression "void" in Article 13(2) must be given the same interpretation as in Article 13(1). Counsel on behalf of the petitioners said that the language of Article 13(2) is somewhat different from the language of Article 13(1) and, therefore the expression, "void'' in Article 13 (2) must be interpreted in a different manner. I am unable to accept this argument as correct. Whether the law is post-Constitution or whether the law is pre-Constitution, the quality of the law is the same; the same infirmity exists, there is the' same qualitative defect. Whether there is inconsistency under Article 13(1) or whether there is contravention under Article 13 (2), the effect fs identical in either case, namely, the law is "void". The expres sion Void" occurs both in Article 13(1) and Article 133(2) and I see no reason why the same meaning ould not be attributed to it in both parts of the same Article. The fact that the law is post-Consti-tution or pre-Constitution is not relevant; it is a purely adventitious or extraneous circumstance. As I have already said the difference between the language oi Article 13(1) and 13(2) was not the basis of the decision of the Supreme Court in 1955-2 SCR 589: ((S) AIR 1955 SC 781) (B), and the reasoning of that case would equally apply to post-Constitution laws. Such laws are not dead for all purposes for they would be operative against non-citizens; and as re-gards citizens, the doctrine of eclipse would apply and the laws would be overshadowed by the fundamental rights for the time being. In the course of argument, Mr. B. C. Ghosh placed much reliance 'upon the reasoning of Mahajan, C. J. in 1955-1 SCR, 613 at pp. 651-65 : ((S) AIR 1955 SC 123 at p. 145) (C). With great respect I think that the observation of the learned Chief Justice is in the nature of obiter dictum and it was not necessary for the actual decision of that case. The question of interpretation of Article 13 (2) did not arise in that case, nor was it actually decided. Mr. B. C. Ghosh also referred to the decision of the Supreme Court in Saghir Ahmad v. State of U. P., 1955-1 SCR 707: (AIR 1954 SC 728) (D). That was of course a case dealing with a post-Constitutional law, but the question of interpretation of Article 13 (2) did not arise and was not decided in that case. The statute challenged in that case was U. P. Road Transport Act, 1951 (U. P. Act 2 of 1951) which was passed and became law on and from 10-2-1951. It was decided by the Supreme Court that this statute violated the fundamental right under Article 19 (1) (g) of the Constitution and was not protected by Article 19 (6) of the Constitution as it stood at the time of the enactment. It was also held that U. P. Act II of 1951 contravened the provisions of Article 31 (2) of the Constitution. It was admitted by the parties in that case that the validity of the impugned Act should be decided by the provisions of Article 19 (6) of the Constitution as it stood at the time of the enactment and not by Article 19 (6) as amended as a result of the Constitu tion (First Amendment) Act, 1951. At p. 720 (of SCR): (at p. 735 of AIR) Mukherjee, J. states as follows : "Article 19 (6) of the Constitution, as it stands after the amendment of 1951, makes a three-fold provision by way of exception to or limitation upon Clause (1) (g) of the article. In the first place it em-powers the State to impose reasonable restrictions upon the freedom of trade, business, occupation of profession in the interests of the general public. In the second place it empowers the State to prescribe the professional and technical qualifications necessary for practising any profession or carrying on any occupation, trade or business. Thirdly, and this is the result of the Constitution (First Amendment) Act of 1951 -- it enables the state to carry on any trade or business either by itself or through a corporation owned or controlled by the State to the exclusion of private citizens wholly or in part. It is not disputed that the third provision which was introduced by the amendment of the Constitution in 1951 was not in existence when the impugned Act was passed and the High Court rightly held that the validity of the Act is not to be decided by applying the provision of the new clause. The learned Judges held however that quite apart from the new provision, the creation of a State monopoly in regard to transport service, as has been done under the Act, could be justified as reasonable restrictions upon the fundamental right enunciated in Article 19 (1) (g) of the Constitution imposed in the interests of the general public." 14. The. decision of the Supreme Court in 1955-1 SCR 707; (AIR 1954 SC 728) (D), therefore, does not support the proposition for which learned Counsel for the petitioners contends. The question of interpretation of Article 13 (2) did not arise in that case, as it was conceded by the parties that the question should be decided with reference to Article 19 (6) as it stood before the Constitution (First Amendment) Act, 1951. 15. It is manifest, therefore, that the question at issue in the present case was not the subject-matter of decision either in 1955-1 SCR 613 : ((S) AIR 1951 SC 123) (C), or in 1955-1 SCR 707: (AIR 1954 SC 728) (D). That is also the view expressed by S. R. Das, C. J. with regard to the effect of these two decisions, in the subsequent case 1955-2 SCR 589 at p. 597; ((S) AIR 1955 SC 781 at p. 784) (B), bis Lordship states as follows : "The contention of the respondents before us is that although the amending Act, on the authority -of our decision in 1955-1 SCR 707: (AIR 1954 SC 728) (D), became on and from 26-1-1950 void as against the citizens to the extent of its inconsistency with the provisions of Article 19 (1) (g), nevertheless, after 18-6-1951, when Clause (6) was amended by the Constitution (First Amendment) Act, 1951, the amending Act ceased to be inconsistent with the fundamental right guaranteed by Article 19 (1) (g) read with the amended Clause (6) of that Article, because that clause, as it now stands, permits the creation by law of State monopoly in respect, inter alia of motor transport business and it became operative again even as against the citizens. The petitioners, on the other hand, contend that the law having become void for uncoustitutionality was dead and could not be vitalised bv a subsequent amendment of the Constitution removing the constitutional objection, unless it was re-enacted, and reference is made to Prof. Cooley's work on Constitutional Limitations, Volume I, page 384, Note referred to in our judgment in Shagir Ahmad's case (D) (supra), and to similar other authorities. The question thus raised by the respondents, however, was not raised by the learned Advocate-General in that case, although the notification was published by the U. P. Government on 25-3-1953, and the proposed scheme was published on 7-4-1953, i.e., long after the Constitution (First Amendment) Act, 1951, had been passed. This question was not considered by this Court in Shagir Ahmad's case (D), for it was there conceded (see p. 720 of SCR): (at p. 735 of AIR), that the validity of the U. P. Act which, in this respect, was similar to the C. P. & Berar Act now under consideration, was not to be decided by applying the provisions of the amended Clause (6). Nor was this problem raised before or considered by this Court in 1955-1 SCR 613: ((S) AIR 1955 SC 123) (C). We, therefore, conceive it to be open to us to go into the new question that has now been mooted before us and to consider what effect the amended clause (6) has on the impugned Act. This involves a question of construction of Article 13 of the Constitution." 16. On this part of the case, my concluded opinion is that Bihar Act 30 of 1951 was revivified and revitalised with effect from the date of the passing of the Constitution (Fourth Amendment) Act, 1955, and the Bihar Act 30 of 1951 became constitutionally valid and operative with effect from 27-4-1955, on which date the Constitution (Fourth Amendment) 1955, was passed. 17. I shall then proceed to consider the argu ment that Bihar Act 30 of 1951 contravenes Article 14 of the Constitution. The submission of Mr. B. C. Ghosh was that the Act singled out certain areas, namely, the districts of Bhagalpur, Monghyr, Purnea and Darbhanga for differential treatment. It was also contended that Section 1 (2) of the Act em powered the State Government to extend the Act to such areas of these four districts in their absolute discretion. In support of his submission Counsel re ferred to Section 1 of Bihar Act 30 of 1951 which runs as follows : "1. (1) This Act may be called the Kosi Area (Restoration of Lands to Raiyats) Act, 1951. (2) It shall extend to such areas of the districts of Bhagalpur, Monghyr, Purnea and Darbhanga as may be notified, from time to time, by the State Government." 18. I do not accept this argument as valid. Section 1 (2) which grants power to the State Government to notify areas must be read along with the preamble of the Act. The preamble refers to the floods of the Kosi river and to lands of raiyats which were sold for arrears of rent or which were treated as abandoned in the absence of the raiyats from the villages affected by the Kosi floods. The preamble also indicates that the districts of Bhagalpur, Monghyr, Purnea and Darbhanga were chosen because those districts are affected by floods in the Kosi river. In my opinion the geographical classification is a good classification because there is a nexus or connection between the classification and the object of the statute. That is the ratio of the" reasoning of the decision of the Supreme Court in Budhan Choudhry v. State of Bihar, 1955-1 SCR 1045: ((S) AIR 1955: SC 191) (E). It was argued by Mr. B. C. Ghosh that the preamble of the statute cannot be looked at to examine this question of reasonableness of classification under Article 14. I do not think there is any substance in this argument. I see no reason why the recital of facts in the preamble of a statute should not be taken as material for legislative classification. In fact the Supreme Court itself has decided in Riming Rawat v. State of Saurashtra, 1952 SCR 435: (AIR 1952 SC 123) (F) that the recital in the preamble of the impugned ordinance furnished a tangible and rational basis of classification and, therefore, Article 14 was not violated. In the course of his judgment Mukherjee, J. stated that the preamble of the ordinance taken along with the surrounding circumstances disclosed a definite legislative policy and objective, and the impugned ordinance cannot be held to be unconstitutional merely because it vested in the Government the authority to constitute Special Courts and to specify the classes of offences to be tried by such courts with a view to achieve that objective. A similar view as to the effect of the preamble was also expressed in the same case by Fazl Ali, J. and Das, J. in their respective judgments. I, therefore, hold that the argument of Mr. B. C. Ghosh on this point is misconceived. It was then argued on behalf of the petitioners that the period mentioned in Section 3, namely, between the 1st of January, 1939, and the 31st of December, 1950, has been arbitrarily chosen by the legislature and there was nothing to indicate that the floods occurred in the Kosi river only in this period and not at other points of time. It was, therefore, contended that the section is discriminatory against a certain class of persons and was hit by the guarantee under Article 14 of the Constitution. I think that this argument is fallacious. On the face of it, there is nothing to show that the period chosen, namely, the period between 1-1-1939 and 31-12-1950, is arbitrary. It was of course open to the petitioners to prove that this period was arbitrary by establishing facts aliunde. It is a question of fact, and in such a case the presumption of the validity of the legislative classification must apply. For "it must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds; Middleton v. Texas Power and Light Co., (1919) 249 US 152 at p. 157 (G)." It follows that the onus of proof of discrimination is on the petitioners. The onus has not been discharged by the petitioners in these cases and no material has been produced to show that the period from 1-1-1939 to 31-12-1950, is arbitrary or capricious. I am, therefore, unable to accept the argument advanced on behalf of the petitioners that Section 3 violates the guarantee of equal protection under Article 14 of the Constitution. To adopt the words of Justice Stone, "It is a salutary principle of judicial decision long emphasised and followed by this Court that the burden of establishing the unconstitutionality of a statute rests on him who assails it and that courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators. A statutory discrimination will not be set aside as the denial of the equal protection of the laws if any state of facts reasonably may be conceived to justify it : Metropolitan Casualty Insurance Co. v. Brownell, (1935) 294 US 580 (H)." 19. It was then submitted on behalf of the petitioners that the power of restoration granted to the Collector under Section 3 was arbitrary and uncontrolled and hence there is a violation of Article 14. I do not think that this argument is valid. The power granted to the Collector under Section 3 is controlled and circumscribed by the conditions mentioned in the section itself. Section 3 provides that the collector may take proceedings for the restoration of the land to the raiyats subject to the conditions, (a) the holding of the raiyat or portion thereof was sold in execution of a decree for arrears of rent, (b) if a raiyat is ejected from a holding in execution of a decree passed under Sub-section (2) of Section 66 of the Bihar Tenancy Act, 1885, or (c) if the holding of a raiyal or portion thereof was treated as abandoned under Section 87 of the Bihar Tenancy Act, 1885, at any time between, 1-1-1939 and 31-12-1950. These are the conditions prescribed by the legislature in Section 3 for the exercise of the power conferred upon the Collector of restoration of land to the raiyats in question. It is manifest, therefore, that the principles are fixed by the legislature in Section 3 for the exercise of the power conferred 'on the Collector. It is also important to notice other relevant provisions of the statute in this connection. Section 4 requires the Collector to give notice of the proceeding to the raiyat, the landlord or any other person interested in the holding, and direct them to appear before him and file objection. Section 5 is also important. It imposes a duty on the Collector to hear the objections put forward by interested persons and to make an enquiry into the matter. Section 7 indicates as to what is the procedure to be adopted if the Collector decided to restore the land to the raiyat. The section requires the Collector to determine the lands liable to be restored, to determine the amount to be paid by the raiyat as compensation and to specify the person to whom compensation shall be payable. Section 10 provides that a person who had no notice of the proceeding under Section 3, may apply to the Collector objecting to the delivery of possession or for recovery of possession. When such an application is made, the Collector is required to investigate the matter and hear the parties interested. Section 16 is important. This section provides that an appeal shall lie from the order of the Collector to the Commissioner, and that when an order is made by any officer other than the Collector of the district, to the Collector of the district or to any officer specially empowered by the State Government. It is clear from an examination of the statutory provisions that the discretion of the Collector under Section 3 is controlled by various safeguards. I am unable, therefore, to accept the argument of learned Counsel for the petitioners that the discretion of the Collector under Section 3 is uncontrolled or vagrant,, or that there is a violation of the guarantee of equal protection of laws under Article 14 of the Constitution. In my opinion Mr. B. C. Ghosh has failed to make good his submission on this point, 20. I pass now to consider the contention that the impugned statute violates the guarantee under Article 19 (1) (f) of the Constitution. The line of argument adopted by Mr. B. C. Ghosh is exactly the same as that adopted by him in respect of Article 14, and for the reasons I have already expressed I hold that there is no substance in the argument of learned Counsel. There is also an additional point. I do not think that Article 19 (1) (f) has any application to the present case. Article 31 applies to a case where there is a complete and total deprivation of property, and Article 19 (1) (f) does not apply to such a case. That is the view expressed fay the Supreme Court in State of Bombay v. Bhanji Munji, (S) AIR 1955 SC 41 (I), and also in Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR 1954 SC 119 (J). For these reasons also I hold that the argument of the petitioners with regard to Article 19 (1) (f) must be rejected. 21. Lastly, Mr. B. C Ghosh made the submission that the proceedings taken by the Collector under Section 3 of Bihar Act 30 of 1951 before 27-4-1955, were illegal and beyond his jurisdiction. It was argued that even if the Bihar Act was validated after 27-4-1955, the proceedings taken by the Collector under Section 3 of that Act before 27-4-1955, were not saved. I think the argument of learned Counsel is well founded on this point. 1 have already held that Bihar Act 30 of 1951 is constitutionally valid and operative after 27-4-1955, after the cloud or eclipse was removed by the Constitution (Fourth Amendment) Act, 1955, but it would not follow that the proceedings taken by the Collector under Section 3 before 27-4-1955, are also validated. I have already referred to the fact that the Constitution (Fourth Amendment) Act was not retrospective with regard to the amendment of Article 31 (2) and the insertion of the new Article 31 (2A), It is manifest, therefore, that the proceedings taken by the Collector under Section 3 before 27-4-1955, were ab initio void, illegal and without jurisdiction. In other words, proceedings taken by the Collector under Section 3 before that date are infected by illegality, and the effect of the Constitution (Fourth Amendment) Act is not to validate or legalise such proceedings. On behalf of the State of Bihar, the learned Government Advocate conceded that this was the correct position, as a matter of law. I hold, therefore, that the proceedings by the Collector under Section 3 taken before the material date, namely, 27-4-1955, are illegal and void and suffer from want of jurisdiction. In such cases, therefore, the petitioners concerned are entitled to grant of a writ in the nature of certiorari for quashing such proceedings. 22. That is the position with regard to Miscellaneous Judicial Cases Nos. 225, 187, 436, 267 and 262 of 1954, Nos. 68, 97, 98, 99, 100, 109, 110, 111, 112, 113, 114, 115, 131, 132, 133, 66, 232, 295, 296, 128, 170, 69, 70, 662, 343, 630, 694, 632 and 600 of 1955, and Nos. 26, 94, 113, 24, 25, 27 and 198 of 1956. In all these cases the orders of the Collector under Section 3 were made before 27-4-1955, and for the reasons I have already given I think a writ in the nature of certiorari should be issued in each of these cases to quash the proceedings taken by the Collector. I would accordingly allow all these applications. I do not propose to make any order as to costs. 23. With regard to Miscellaneous Judicial case No. 614 of 1955, the position is different. In this case notices were issued by the Collector under Section 3 of the Act on the 13th and 16th June, 1955, long after the Constitution (Fourth Amendment) Act came into force. It is manifest that the proceedings taken by the Collector under Section 3 in this case are legally valid and operative and are not vitiated by any defect. It follows that the petitioner of this case is not entitled to grant of any writ. I would, therefore, dismiss Miscellaneous Judicial Case No. 614 of 1955; but, in the circumstances, I would not make any order as to costs. Raj Kishore Prasad, J.
24. I agree.