1969 Supreme(Pat) 85

PATNA HIGH COURT
K.B.N.Singh and B.N.Jha JJ.
Buddinath Mishra
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 738 of 1967 ;
Decided On : MAY 07, 1969

Sec. 53 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, is unconstitutional and invalid as it contravenes Sec.299 (2) of the Government of India Act, 1935 and Article 31 (2) of the Constitution of India and also as it violates Article 14 of the Constitution.

Headnote:

CONSTITUTIONAL LAW - ARTICLE 31 (2) - ACQUISITION OF LAND - COMPENSATION - PRINCIPLES FOR DETERMINATION - SECTION 53 OF THE SANTHAL PARGANAS TENANCY (SUPPLEMENTARY PROVISIONS) ACT, 1949 - VALIDITY - ARTICLE 14 OF THE CONSTITUTION - DISCRIMINATION - SECTION 53 OF THE ACT - VIOLATIVE OF ARTICLES 14 AND 31 (2) OF THE CONSTITUTION AND SECTION 299 (2) OF THE GOVERNMENT OF INDIA ACT, 1935 - STRUCK DOWN - ACQUISITION PROCEEDING UNDER SECTION 53 OF THE ACT QUASHED.

Fact of the Case:

The petitioners, proprietors of Banaili Raj, acquired certain lands under Sec.25A of Regulation II of 1872 for erection of buildings and extension of cutchery compound. The land of Plot No. 6 of Village Gorhimal appertaining to Touzi No. 503 and of Plot No. 360 appertaining to Touzi No. 372 of village Routara was the basauri land of the Raj. In partition of the estate, the aforesaid mahal of Gorhimal and Routara fell in the share of the petitioners who were proprietors of Banaili Raj to the extent of three annas share and thereafter the petitioners came in exclusive possession of the aforesaid lands of Plots Nos. 6 and 360. The estate of the petitioners completely vested by the 30th January, 1954 in the State of Bihar. The State of Bihar also took possession of the cutchery and the land appertaining to it and the petitioners remained in possession of the remaining portions of Plots Nos. 6 and 360. According to the case of the petitioners, they are basauri tenants of the aforesaid land under Sections 5 and 7 of the Bihar Land Reforms Act. The petitioners, therefore, had full right to make transfer of the aforesaid land as basauri tenants. In the alternative, they asserted that even if they be deemed to be the raiyats in respect of the aforesaid land under Sec. 6 of the Land Reforms Act, they were not the raiyats within the meaning of the Santhal Parganas Tenany Act, 1949 (hereinafter referred to as the Act) and Sec.20 of the Act, putting restrictions on the powers of transfer of the land of a raiyat, could not be applied in the case of the petitioners. The Banaili Raj had settled a portion of the aforesaid land acquired under Regulation II of 1872 with various tenants for homestead purposes who had constructed their buildings over the same. After the vesting, the petitioners sold a portion of the land by a registered kebala at the rate of Rs. 4,000 per katha sometime in the year 1966. Thereafter, they sold some more portions of the land but the Registration Officer, Godda, refused to register the documents at the instance of the Deputy Collector, Land Reforms, Godda, on the ground that Sec.20 of the Act applied in the case of the transfer made by the petitioners also. The matter was referred to the Deputy Commissioner by the Registration Officer, Godda, at the instance of the petitioners but it has not been decided as yet. The petitioners have characterised this action of the Registration Officer as mala fide because the State of Bihar wanted to acquire the land and did not like to pay proper compensation. According to the petitioners, the valuation of the land would not be less than Rs. 2,500 per katha. They referred to certain correspondence between the local authorities and the Commissioner, Bhagalpur, in which it was mentioned that the land of the petitioners and others measuring 9.32 acres should be acquired for the purposes of shifting the Godda Hatia from the present site and approximate compensation would be paid at Rs. 8,550 i. e. at the rate of less than Rs. 1,000 per acre. The residents of Godda town filed objection to the shifting of the Hatia but it was ignored. The petitioners came to know that the Commissioner of Bhagalpur Division recommended to the Government for acquiring the said land at the aforesaid rate. Thereafter, the Deputy Collector, Land Reforms, Godda, filed an application along with the Kanungos report for the acquisition of the land mentioned in the report before the Sub-divisional Officer, Godda, who started a proceeding for acquisition of the land measuring 8.62 acres or mouza Gorhi-mal and 0.70 acre of mouza Routara which include 3.45 acres of aforesaid plot No. 6 of village Gorhimal and 0.70 acre of plot No. 360 of village Routara belonging to the petitioners, on the 25th September, 1967 (Annexure F), being Land Acquisition Case No. 3 of 1967-68 under Sec. 53 (1) (a) of the Act for shifting of Godda Hat for better management and increased income and notice was ordered to be issued to the raiyats of the aforesaid two villages and to the tenants whose lands were going to be acquired for the purpose of filing objections. The petitioners having learnt about the land acquisition proceedings and the previous correspondence for the acquisition of the land have filed this application under Articles 226 and 227 of the Constitution for quashing the land acquisition proceeding (annexure F) and restraining the opposite party from acquiring the lands of the petitioners after declaring that the lands of the petitioners are homestead and not raiyati lands, they are liable to be sold and the opposite party have no right to withhold and refuse registration of transfer deeds etc.

Finding of the Court:

The Court held that Sec. 53 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, is violative of both Articles 14 and 31 (2) of the Constitution and also Section 299 (2) of the Government of India Act, 1935 and have got to he struck down and the proceeding for acquisition taken under Sec. 53 of the Act (annexure E) must be quashed.

Issues: 1. Whether Sec. 53 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, is unconstitutional and invalid on the ground that it contravenes Sec.299 (2) of the Government of India Act, 1935 and Article 31 (2) of the Constitution of India and also as it violates Article 14 of the Constitution? 2. Whether the provisions of Section 53 of the Act are attracted to the lands of the petitioners for the acquisition of which the proceeding (annexure F) has been started? 3. Whether the petitioners are entitled to the reliefs prayed for in the writ petition?

Ratio Decidendi: 1. Sec. 53 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949, does not fulfil the requirements of Sec.299 (2) of the Government of India Act, 1935, as regards the fixation of the amount of compensation or specification of the principles on which and the manner in which it is to be determined. Therefore, the Provincial Legislature was not competent to enact Sec. 53 of the Act and as such it is void ab initio and the proceeding taken in pursuance thereof could not be allowed to continue. 2. Sec. 53 of the Act makes naked encroachment on the fundamental rights guaranteed to the petitioners under the Constitution to hold their properties and their properties could not be acquired save for public purposes under the process of laws which are in conformity with the provisions of Article 31 (2) of the Constitution. 3. The provisions of Sec. 53 of the Act are violative of Article 14 of the Constitution which gives a person equality before the law and affords equal protection of the law within the territory of India. 4. The petitioners not being raiyats under the Santhal Parganas Tenancy Act, 1949, their lands cannot be acquired under the provisions of Sec. 53 of the Act.

Final Decision: The Court allowed the application, quashed the acquisition proceeding (Annexure E), being Land Acquisition Case No. 3 of 1967-68 pending before the Sub-divisional Officer Godda, Santhal Parganas, and restrained the respondents from taking possession of the lands of the petitioners mentioned in Annexure E by acquisition proceeding under Sec. 53 of the Santhal Parganas (Supplementary Provisions) Act, 1949.