1975 Supreme(Pat) 193

PATNA HIGH COURT
S.Sarwar Ali and Nagendra Prasad Singh JJ.
Mahabir Prasad
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 74 of 1974 ; 1460 of 1974 ;
Decided On : OCTOBER 6, 1975

Headnote:Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act 1961, Section 4 & 5-Bihar, Land Reforms (Fixation of Ceiling Area and, Acquisition of Surplus Land) (Amendment) Act, 1973-Section 2 (ee)-Constitution of India, Art. 14, 39 (a) & (b)-Preamble of the Constitution whether limits the legitimate power of the Legislature Definition of family in Sec. 2 (ee) whether disturbance of concept of family known to Mitakshra School-Partition amongst major and minor members of the family-Effect of such Partition for the purposes of the applicability of the Act-Major son or sons to be treated as separate unit-Definition whether result into discrimination-Minor member or spouse and treated as a separate unit Act, whether unworkable-Amending Act whether inconsistent with the Directive Principle of State Policy-Its provisions whether can be considered in isolation or along with the Act of 1961.

       Held, (1) that a Preamble cannot be regarded as a source of substantive power nor can it put limitation on the power that is legitimately exercisable by a Legislature. The provisions of Act 1 of 1973 does not violate the concept of equality expressed in the preamble of the Constitution and is not unconstitutional or ultravires. (A.I.R. 1960 S.C. 845 & A.I.R. 1973 S.C. 1461 ref.) (Paras 12 & 33)

       (ii) "The Amending Act is not inconsistent with the Directive Principles of State policy. No provision, having been made for maintenance of widowed grand mother and widowed daughter-in-law or lower limit of ceiling are not inconsistencies. The parent Act (Act of 1961) is consistent with the Directive Principles of State policy. The provisions of the Amending Act will be considered along with it and can not be treated in isolation. (Paras 12 & 33)

       (iii) Partition amongst the members of the family cannot do away with the effect of definition of the family, whether there is a partition or not the land held by a person, his or her spouse and minor children will have to be treated as a separate unit for the purpose of determination, whether any, land is, held by the family in excess of the ceiling area.......... The position however is different so far as major member is concerned. The major members having present interest has to be treated as a separate unit. (Para 22 & 23)

       (iv) The Act does not treat minor and spouse as a separate unit after partition and is also silent on the mode of determination of surplus land who are separate in status, but that does not make the Act unworkable. (Para 24)

       Endowments and trust has to be treated as a separate unit. They are separate and distinct persons. (Paras 27 & 36)

       Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act 1961 Sec. 2 (f)-Homestead, meaning of whether it includes land not used for agricultural or horticultural purposes and not capable of being so used-Criteria of determination-Land includes Homestead land of the land holder and it is not to be excluded from consideration while determining surplus land-Industrial or Commercial building are not to be taken into Consideration in determination of surplus land since the land is not capable of being used for agricultural or Horticultural purposes nor are they capable of so being used. Capable of so being used does not mean that it is capable of use after removal of permanent structures but this would apply to temporary flimsy structures or land which are waste or shrubs. (Paras 26, 28 & 33)

       Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land Act 1961-Sec. 5 (iii)-Transfers made before passing of the Act and after the passing of the Act - Applicabilities of-Procedure to be followed by the Collector-Effect of annulment.

       Held, that the annulment can be made only on existence of the conditions mentioned in the Section. Section 5 (iii) does not apply to transfer made on or before 22nd day of October, 1959, nor does it apply to bonafide transfers. It is only applicable where transfer is Benami or Farzi or made with the intention of defeating the provisions of the Act or made in contravention of the provisions of the Act. Such transfer can only be ignored after they have been annuled in accordance with the previsions of Section 5 (iii) of the Act.........Even where a transfer is annuled 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. (Paras 29, 30, 31 & 33)

       Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act 1961, Sec. 9-Notice under section 6 of Act to land holder-Rights of option for selecting land when to be exercised.

       Held, that the right to exercise options has been given under the section to be exercised within 3 months of the publication of notice under section 6. It appears that proper stage to permit option to be exercised is after the rights of the land holder have been determined by the Collector. (Para 34).

       Constitution of India, Art. 254 (2), 31 B., Item 18 List 2, Item 42 List III & 9th Schedule, Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) (Amendment) Act 1 of 1973-The legislation relates to "Land covered by Item 18 List II. It is also covered by Item 42 List III, the question of legislative competence therefore does not arise. The legislation even if it be considered to be repugnant to the provisions of Hindu Law, the assent of the President having been obtained, the infirmities are removed by virtue of the provisions of Art. 254 of the Constitution...............The amending Act has further been included in the Schedule 9 of the Constitution and its validity can not be challenged. (Paras 14, 16 & 33)