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2007 Supreme(Pat) 1017
PATNA HIGH COURT
J.N. BHATT, CJ & SHIVA KIRTI SINGH, J.
Amar Singh - Petitioners
Vs.
The State of Bihar & Ors. - Respondents (in all)
CWJC Nos. 5529, 5411, 4152, 11288, 75, 1854, 6224, 6647, 5616, 5528, 5530, 5531, 5617, 6725, 9859, 11161, 739, 806, 1073, 1141, 1625, 1669, 1729, 1750, 2666, 2676, 3483, 3608, 3779, 5110, 5317, 5779, 5883, 5901, 6045, 6232, 6269, 7453, 7629, 7805, 7811, 8048, 8074, 8128, 8216, 8273, 8286, 8887, 8939, 9159, 9306, 9509, 9746, 10346, 10553, 10573, 10701, 10869, 11055, 11631, 11813, 182, 362, 507, 643, 5503, 5506, 9036, 9173, 9470, 9711, 9712, 9766, 10970, 11374, 11609, 252, 253, 1389, 6603, 2646, 3739, 4060, 4080, 4110, 4184, 4215, 4216, 4227, 4228, 4230, 4322, 4331, 4348, 9294, 9395, 9725, 9928, 10083, 10357, 10724, 10809, 10887, 10917, 11015, 11040, 1277, 11467, 11727, 11971, 14872, 15443, 15455, 15515, 15552, 15682, 15718, 15815, 15857, 15879, 15948, 15973, 15974, 16034, 16037, 16071, 16073, 16092, 16116, 16132, 16212, 16257, 16284, 16316, 16317, 16334, 16335, 2263, 1645, 10282, 29, 30, 11725, 12758, 10058, 4058, 4839, 6452, 7129, 8028, 8045, 8727, 9129, 9894, 10236, 12507, 9090, 10276, 9384, 450, 203, 2069, 2207, 3152, 3253, 3476, 4999, 5479, 7504, 6288, 6615, 7117, 7252, 8468, 8527, 8552, 6009, 6958, 7032, 12825, 655, 695, 698, 702, 432, 372, 11328, 7045, 7790, 12316, 13716, 13728 of 1995.
Decided on: 30.5.2007
For the Petitioners: M/s. K.N. Choubey, Abhay Kumar Singh, Sidheshwari Pd. Sinha, Y.V. Giri, Basant Kr. Choudhary, Anil Jayaswal, S.D. Sanjay, Mahendra Pd. Gupta, Jyoti Saran, S.K. Mishra, Kundan Bahadur Singh, Arun Kumar No.2, Anand Kr. Ojha.
For the State: M/s. P.k Shahi, S.K. Ghose, Shyam Kishore Sharma Vikas Kumar, Purnendu Singh, Nirmal Kumar Sinha.
Headnote:Per Shiva Kirti Singh J.
Bihar Tenancy Act, 1885-Section 23 (4) as inserted by Bihar Tenancy (Amendment) Act, 1993 as well as Provisions of Bihar Rent Refixation Rules, 1995-Constitutionality, legality and vires of amendment challenged.
Bihar Tenancy (Amendment) Act, 1993-Section 23(4)-It neither contains any preamble nor any object or purpose-Levy is based not upon production of value of the land, but on market value of land under commercial use-Such is clearly not rent within the meaning of the term in the Act-Although impugned provisions refer to the lavy as re-determined rent, but such levy is tax on land covered by Entry 49 of List II of 7th Schedule to the constitution-It is held that impugned provisions are within the legal competence of State legislature (Paras 16, 22, 42)
AIR 1971 Mad 61 (FB)-Referred to.
Bihar Tenancy (Amendment) Act, 1993-Section 23 (4)-Section 23 as it originally stood before Amendment Act of 1993 served the purpose of securing the right of raiyats with occupancy rights in their lands by declaring that they could use the land in any manner but a condition was imposed clearly to protect the interest on the tenure holder or proprietor that the manner of use should not materially impair the value of the land or render it unfit for the purpose of tenancy-The purpose of imposing such condition was clearly to insure that the rent value of the land is not diminished or impaired so as to affect the interest of the landlord-It is difficult to find any link between the purpose of section 23 as it stood earlier and as it stands after insertion of the impugned provisions-If the industrial or commercial use of the land ipso facto would impair the value of the land or render it unfit for purpose of tenancy then how the landlord is now deemed to be entitled for a much higher rent which is actually in the form of a tax on the market value of the land-If the industrial and commercial use that is use other than those enumerated in sub-section (2) of section 23 does not materially impair the value of the and or render it unfit for the purpose of the tenancy then the entire purpose of the impugned provisions runs counter to the provisions of the Act and amounts to acquisition of certain rights of affected raiyats have enjoyed in the past-Some of the protection offered against the arbitrary increase of rent from raiyats and requirement of rent being fair and equitable have been indirectly taken away and reversed by the impugned provisions creating obvious fiction between different provisions of the Act which require to be read together as one whole unit-The impugned tax on the land is discriminatory because it is imposed on a class of land owners i.e. raiyats with occupancy raiyats covered by Chapter V of the Act and not to other class of land holders covered by Chapter III, IV, V, and VII of the Act-Impugned provisions contravene Article 14 of the constitution. (Paras 24 & 25, 42)
AIR 1961 SC 552, AIR 1962 SC 1563, AIR 1970 SC 169-Relied upon.
Bihar Tenancy (Amendment) Act, 1993-Section 23 (4)- The impugned provisions impose the levy in the name of rent Section confers power upon the State to levy rent on market value up to 5 percent ultimately restricts the right of a raiyat to use his land for any purpose of his choice-It is against the spirit of traditional, historical as well as legislative right of the raiyats-The denial of the occupancy raiyats, the right to use their land in any manner of their choice is arbitrary, unreasonable and against Article-19 (1) (g) of the constitution. (Paras 26 & 42)
Bihar Tenancy (Amendment) Act, 1993-Section 23 (4)-A Taxation statute must be clear in the sense that the charging section must clearly convey to the persons governed by the tax what shall be their liability-The Executive can not be entrusted with the task of fixing the liability of tax differently on grounds not indicated by the legislature-The expression to the extent of 5 percent in the first proviso to sub section (4) of section 23 of the Act is bad on account of excessive delegation and abdication of legislative function by the legislature. (Paras 33 & 42)
Bihar Rent Refixation Rules, 1995-Rule 4-Under the Act and the Rules the market value of only the land is required to be ascertained and that alone is the basis for levy of rent or tax-In heavily constructed areas it may not be possible to determine the proper market value of land only on the basis of sale price of similar land in the vicinity-In such complex situation the same yardstick which may be appropriate for rural areas and which has been adopted in Rule 4 can not be sufficient and suitable for imposing just and uniform rent on all concerned-Hence Rule 4 of the Rules is bad in law for excluding other possible modes to determine the real market value of the land which is likely to result in unfair and unjust levy of rent/tax. (Paras 38 & 42)
AIR 1949 Pat 444 AIR 1968 Pat 296-Referred to.
Bihar Tenancy (Amendment) Act, 1993-Section 23(4) read with Rule 5 of Bihar Rent Refixation Rules, 1995-On a comparison of first proviso to sub-section 4 of section 23 and the proviso to Rule 5 it is obvious that whereas the Act permits for re-determination of rent to the extent of zero to five percent of the market value of the land. the Rules reduce the aforesaid margin effectively by requiring the rent to be re-determined between 3 percent to 5 percent of the market value of the land-The proviso is clearly in teeth of and contrary to the statutory provisions in the first proviso to sub-section 4 of section 23 and is therefore fit to be declared as ultra vires of the Act. (Paras 40 & 42)
Bihar Tenancy (Amendment) Act, 1993 and Provisions of Bihar Rent Refixation Rules, 1995-Re-determined rent imposed by virtue of impugned provisions of the Act and the Rules is declared as viod and in operative-The entire assessment and levy of rent on the basis of market value of the lands under the impugned provisions of the Act and the Rules set aside and quashed-Further held that the benefit of this judgment shall be available only in the pending cases. (Paras 42, 43 & 44)
Constitution of India-Article 226-Judicial Review-Doctrine and object of-The fundamental object of Judicial Review is to exert a great moral force upon the legislature to keep it within the limits of the constitution and to save the people from the democratic tyranny-The doctrine of judicial Review is the enforcement of the rights assured and guaranteed under the constitution through constitutional remedies- The subject of Judicial Review is of paramount importance and its critical, analytical and objective study is useful as well as interesting. (Paras 55, 57, & 58)
Constitution of India-Article 226-Judicial Review-Courts pick out the golden threat of reason and meaning in a law, shape and would the law, reveal its finenesses and nuances smooth the angularities, strike down the bad law or illegal action and most essential of all, exert the strong moral forces of restraint in times when expediency is all-Court however adopt judicial restraint in discharging their function of judicial review in order to maintain harmony between the judiciary and the legislature. (Paras 52 & 60)
Constitution of India-Article 226-Judicial Review-Judicial Review is a great weapon in the armory of administration of justice-In so far as Judicial Review of legislature action is concerned, there is presumption in favour of the constitutionality of the statute and initially the onus of proof of its unconstitutionality lies on the person who challenges it-The validity of the legislation is not to be judged merely by affidavits filed on behalf of the parties, but by all the relevant circumstances like its history object etc and in the backdrop of actual and legal profile-The grounds for striking down an Act are mainly lack of legislative competence and violation of fundamental rights or other constitutional or legal provisions. (Paras 80 and 82)
AIR 1952 SC 196-Referred to.
Constitution of Article-Article 14-In the event of challenging against the legislative action of a legislature on the basis of equality and equal protection-Article 14 prohibits class legislation-It does not forbid reasonable classification for the purpose of legislation-There ought to be nexus between the basis for classification and the design and desideratum of the impugned act sought to be achieved-The anxiety of the court should be whether the impugned classification in the Act or the legislative exercise has led to any violation of the provisions of the constitution or whether such legislation can be condemned as arbitrary, improper or irrational. (Paras 82 & 89)
1955 (1) SCR 1045, 1954 SCR 30.
1977 (4) STC 427 AIR 2007 SC 861-Relied upon.
Per Dr. J.N. Bhatt CJ, Shiva Kirti Singh J. concurring
Bihar Tenancy Act, 1985-Section 23(4) as inserted by Bihar Tenancy (Amendment) Act 1993- The benefit of this judgment shall be available only in the pending cases. (Para 92)
2. During the hearing of these writ petitions on several dates no dispute or controversy of facts was raised before this Court. All the writ petitions have been argued on the basis of undisputed understanding that on account of fresh assessment of rent under the impugned provisions, treating the land to be under non-permissible industrial or commercial use and, therefore, amenable to revised rent on the basis of its market value, the liability of the petitioners towards rent payable to the State under the Act would increase manifold. In some of the written submissions filed on behalf of the petitioners it has been asserted that the liability of rent under the earlier provisions being almost nominal would now be in lakhs as demonstrated by Annexure-6 series referred to in the written submissions relating to CWJC No. 6269/1998 (Bihar Chamber of Commerce & Ors. Vs. The State of Bihar).
3. Before adverting to the impugned provisions and the submissions, it is deemed imperative that the legislative history of the Act and the relevant words and themes in the Act are noticed in the proper perspective. This is necessary because it is common knowledge that majority of the population of India and also in the State of Bihar, live in villages and the change brought about by the Bihar Act 21 of 1993 is bound to affect the rights and interests of majority of the population, who hold rights in lands as raiyats. Before creation of separate State of Bihar out of State of Bengal in the year 1912, the Bengal Tenancy Act of 1885 governed the province of Bengal which included Bihar also. The history of Bengal Tenancy Act of 1885 is well recorded and there is no difficulty in finding that it was passed to repeal. The Landlord and the Tenant Act (Bengal Act 8, of 1869) and to bring about drastic changes in the law governing Zamindars and raiyats with a view to improve the status of raiyats. It modified and improved "occupancy rights" of a raiyat and laid down the conditions on which a raiyat could be evicted. It further laid down the definition of rent under section 3(5) as-"whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant.” Section 3(4) defines landlord as a person immediately under whom a tenant holds, and includes the Government Section 27 of the Act created a presumption that the rent for the time being payable by an occupancy raiyat shall be presumed to be fair and equitable until the contrary is proved and Section 28 imposed restrictions on enhancement of money rents in any other manner except as provided by the Act. For securing the status of raiyat the Act provided for preparation of record of rights and for survey. The nomenclature of the Act was changed to the present one by Bihar Tenancy (Amendment) Act, 1934 and the issues relating to transferability of occupancy was solved by adding new Sections 26-A to 26-0 to the Act. A further amendment Act of 1947 brought a revolutionary change in the Act by adding new Section 21 A whereby the status of most of the non-occupancy raiyats was elevated to that of occupancy raiyats. The Bihar Land Reforms Act 1950 improved the situation of raiyats further by abolishing the Zamidari system and the occupancy raiyats were declared to hold their lands directly under the Government. Thus, the constant object and purpose of the Act remained as improvement in the condition and status of raiyats.
4. Although it may not be of
