1972 Supreme(Pat) 147

PATNA HIGH COURT
Shambhu Prasad Singh and Shiveshwar Prasad Sinha JJ.
Ram Narain Singh
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 1481 of 1971 ; 1485 of 1971 ; 1522 of 1971 ; 1560 of 1971 ;
Decided On : AUGUST 19, 1972

The provision contained in Sub-section (1) of Sec. 48-E for initiation of a proceeding by the Collector is imperative and not merely permissive.

Headnote:

Bihar Tenancy Act, 1985 - Section 48-E - Amendment Act, 1970 - Vires - Article 14 of the Constitution of India - Whether ultra vires - Whether discriminatory - Whether drastic or prejudicial to the landlord - Whether the procedure followed in a proceeding under Sec. 48-E is more drastic or prejudicial compared with the procedure to be followed in a civil suit - Whether the section is discriminatory on the ground that it leaves a discretion in the Collector and the under-raiyat in the matter of initiating a proceeding against the landlords without laying down any guidelines for the purpose.

Fact of the Case:

Seven applications by the landlords under Articles 226 and 227 of the Constitution of India raising a common question as to vires of Sec. 48-E of the Bihar Tenancy Act (Act No. VIII of 1885) as amended by the Bihar Tenancy (Amendment) Act, 1970 (Act No. VIII of 1970).

Finding of the Court:

1. Section 48-E of the Bihar Tenancy Act, as it stands now after the amendment of 1970, is not hit by Article 14 of the Constitution as it is not discriminatory in nature. 2. The provision contained in Sub-section (1) of Sec. 48-E for initiation of a proceeding by the Collector is imperative and not merely permissive. 3. The section does not completely take away the power of the under-raiyat to institute a suit before a Civil Court. It merely confers upon them an additional remedy of getting a proceeding under Sub-section (1) of that section initiated. 4. The procedure available in a proceeding under Sec. 48-E is not more drastic or prejudicial to the landlord than the procedure available under a regular suit. 5. Sub-section (11) of Sec. 48-E is severable from other provisions of the section and is ultra vires.

Issues: 1. Whether Sec. 48-E of the Bihar Tenancy Act, as it stands now after the amendment of 1970, is ultra vires or not? 2. Whether the provision contained in Sub-section (1) of Sec. 48-E for initiation of a proceeding by the Collector is imperative or merely permissive? 3. Whether the section completely takes away the power of the under-raiyat to institute a suit before a Civil Court? 4. Whether the procedure available in a proceeding under Sec. 48-E is more drastic or prejudicial to the landlord than the procedure available under a regular suit? 5. Whether the section is discriminatory on the ground that it leaves a discretion in the Collector and the under-raiyat in the matter of initiating a proceeding against the landlords without laying down any guidelines for the purpose?

Ratio Decidendi: 1. The power conferred by this section is coupled with the duty of the Collector, the person to whom it is given to exercise it. It has, therefore, to be construed as imperative. 2. Whenever the Collector comes to know of the existence of any of the three, conditions, either suo motu or on an application of an under-raiyat, he is duty bound to initiate a proceeding. 3. The section merely confers upon them an additional remedy of getting a proceeding under Sub-section (1) of that section initiated. 4. There is nothing in Sub-section (1) itself which can be said to be drastic or prejudicial to the landlord. 5. The section or any rules made by the State Government do not provide for following the procedure laid down in the Code of Civil Procedure in an enquiry by the Collector, it is not discriminatory, for the landlord against whom a proceeding under the section is instituted is deprived of the advantage of the procedure available to him in a suit.

Final Decision: All the seven writ applications are allowed in part to the extent that Sub-section (11) of Sec. 48-E of the Act is declared ultra vires. C. W. J. C. Nos. 1481 to 1435 further succeed to the extent that part of the order of the D. C. L. R. restraining the petitioners from evicting the respondent No. 3 of each case is also quashed. He may pass such an order only after satisfying himself as to the factum of possession of the under-raiyat concerned. The applications do not succeed in other respects. In the circumstances of the case, there will be no order as to costs.