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PATNA HIGH COURT
R.N.Sahay, G.S.Sharma and P.K.Deb JJ.
Mathura Singh
Versus
Tetali Dom
Appeal From Appellate Decree No. 60 of 1988 ;
Decided On : MAY 01, 1996
CHOTANAGPUR TENANCY ACT - SECTION 46 - VALIDITY - REASONABLE RESTRICTION - INTEREST OF GENERAL PUBLIC - SCHEDULED CASTES - TRANSFER OF HOLDING - PRIOR PERMISSION OF DEPUTY COMMISSIONER - CONSTITUTIONALITY.
Fact of the Case:
The appellant purchased land from the defendant, a member of the scheduled castes, without obtaining the prior permission of the Deputy Commissioner as required by Section 46(1) of the Chotanagpur Tenancy Act (C.N.T. Act). The appellate court held that the sale was invalid due to the violation of Section 46(1). The appellant challenged this decision, arguing that Section 46(1) was ultra vires Article 19(1)(f) of the Constitution, which guaranteed the right to property, and that the deletion of Article 19(1)(f) by the 44th Amendment to the Constitution did not affect the validity of the law.
Finding of the Court:
The Full Bench of the Patna High Court held that Section 46(1) of the C.N.T. Act was not ultra vires Article 19(1)(f) of the Constitution, either before or after the 44th Amendment. The court found that the restriction imposed by Section 46(1) was reasonable and in the interest of the general public, as it aimed to protect the interests of the scheduled castes and prevent their exploitation.
Issues: 1. Whether Section 46(1) of the C.N.T. Act was ultra vires Article 19(1)(f) of the Constitution before the 44th Amendment? 2. Whether the deletion of Article 19(1)(f) by the 44th Amendment affected the validity of Section 46(1)? 3. Whether the restriction imposed by Section 46(1) was reasonable and in the interest of the general public?
Ratio Decidendi: 1. The court held that Section 46(1) of the C.N.T. Act was not ultra vires Article 19(1)(f) of the Constitution before the 44th Amendment. The court interpreted Article 19(1)(f) broadly, holding that the restriction imposed by Section 46(1) was reasonable and in the interest of the general public, as it aimed to protect the interests of the scheduled castes and prevent their exploitation. 2. The court held that the deletion of Article 19(1)(f) by the 44th Amendment did not affect the validity of Section 46(1). The court relied on Article 318 of the Constitution, which provides that laws included in the 9th Schedule are immune from challenge on the ground that they violate fundamental rights. 3. The court held that the restriction imposed by Section 46(1) was reasonable and in the interest of the general public. The court noted that the restriction was not drastic, as it only required the vendor to obtain prior permission from the Deputy Commissioner, and that it was necessary to protect the interests of the scheduled castes and prevent their exploitation.
Final Decision: The court dismissed the appeal, upholding the validity of Section 46(1) of the C.N.T. Act.
R.N.Sahay, J.
1. This second appeal has been referred to Full Bench under Rule I, Chapter V of the Patna High Court Rules for a decision whether the decision of this Court in Budhni Maintain V/s. Gobardhan Bhogta reported in 1984 BLT 226 whereby Section 46(1) of the Chotanagpur Tenancy Act was declared ultra vires under Article 19(1)(f) of the Constitution, is a right decision and if the answer is in the affirmative, whether the law declared in the said decision still holds valid after deletion of Article 19(1)(f) from the list of fundamental rights by virtue of 44th Amendment of the Constitution.
2. The appellant herein, Mathura Singh, filed the suit No. 26 of 1982 out of which this appeal arises, for a declaration that he was the rightful owner of the suit land and for a decree for confirmation of this possession. One of the issues in the suit was whether purchase of the suit land by the plaintiff-appellant form defendant was in violation of Sec. 46(1) of the C.N.T. Act which provides as follows:
46. Restrictions on transfer of their rights by raiyats.--(1) No transfer by a raiyat of his right in his holding or any portion thereof- (a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a raiyat may enter into a bhugut bandha mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgage be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B & O. Act VI of 1935) for any period not exceeding fifteen years:
Provided further that: (a) an occupancy-raiyat who is a member of the Scheduled tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the scheduled tribes and who is a resident within the local limits of the area of the police station within which the holding is situate;
(b) an occupancy taiyat who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person who is a member of the Scheduled Castes, or, as the case may be backward classes and who is resident within the local limits of the district within which the holding is situate.-
(c)....
(d)...any occupancy raiyat who is not a member of the scheduled tribes, scheduled castes or backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person....
3. There is no dispute that defendant-vendor had not obtained permission of the Deputy Commissioner before transferring the land in favour of the plaintiff. The Addl. Munsif held that the sale could not be held to be invalid for breach of Sec. 46(1) of the C.N.T. Act because defendant having transferred the land without obtaining permission, was estopped from raising such a plea. The suit was decreed in favour of the appellant. On appeal, the appellate court came to a contrary finding. It held that the sale was invalid because the defendant who was a member of the scheduled castes had transferred his property without permission of the Deputy Commissioner as enjoyed by Sec. 46(1) of the C.N.T. Act. The decree of the Munsif was reversed and plaintiffs suit was dismissed.
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 Sec. 46 of the C.N.T. Act. The lea
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