High CourtDivision BenchAppeal allowed; remitted to High Court for fres...

SIRISIA STHAL, IMLI CHATI, MUZAFFARPUR & ORS. v. STATE OF BIHAR & ORS.

Case / Petition Number:Civil Appeal No.1001 of 2002
Neutral Citation:[2008] 2 S.C.R. 683

Case Details & Bench

Court
High Court
Hon'ble Judges
  • Dr. Arijit Pasayat
  • P. Sathasivam
  • (Judges)
Judgment Date
2008-02-11
Court Decision / Holding
The High Court’s impugned order is set aside and the matter is remitted to the High Court for fresh consideration in accordance with law; the writ petition is to be heard on its merits, with a view to constitutional validity, and preferably decided by October 2008.
Final Disposition
Appeal allowed; remitted to High Court for fresh consideration in accordance with law.

Parties to the Case

Appellants / Petitioners

  • SIRISIA STHAL, IMLI CHATI, MUZAFFARPUR & ORS.

Respondents

  • STATE OF BIHAR & ORS.

Legal Representation & Advocates

Counsels for Petitioners

  • • S.B. Sanyal
  • • Ranjan Mukherjee

Counsels for Respondents

  • • Saurabh Kirpal
  • • Gopal Singh

Case Synopsis & Summary

The appeal challenges the vires of provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. The writ petition contends that amendments to Section 29, and the abolition or modification of exemptions previously granted under Section 29(2)(a)(ii), undermine constitutional limits and exceed legislative competence. The High Court dismissed the petition, referring to the Ninth Schedule of the Constitution, and held that the writ petition could not be entertained because the matter involved an enactment included in the Ninth Schedule. The appellants argued that the question of maintainability and the challenged amendments did not depend on the 9th Schedule, and that the exemptions granted earlier had been altered; they claimed that the case should be examined on its merits, with a view to the constitutional validity of the challenged provisions, not dismissed on the procedural technicality. The State submitted that although the amendment was not in the Ninth Schedule, the effect is to delete the exemption with retrospective effect. The Supreme Court held that the High Court had not properly examined the constitutional challenge and had incorrectly invoked the 9th Schedule. It set aside the High Court's order and remitted the matter for fresh consideration in accordance with law, requesting an expeditious disposal, preferably by October 2008.

Provisions of Law Cited

Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961Section 29 of the ActSection 29(2)(a)(ii) of the ActBihar Act 8 of 1997 (amendment)Section 2 of the impugned Bihar Act 8 of 19979th Schedule of the Constitution (Ninth Schedule)

Legal Doctrines & Maxims

  • Ultra vires
  • 9th Schedule (Constitution)

Submissions & Arguments

Contentions of Appellants / Petitioners

Appellants contend that the vires challenge to certain provisions of the Bihar Land Reforms Act, 1961 is not defeated by the 9th Schedule since the controversy concerns the validity of amendments to Section 29 and the continued exemption regime previously available under Section 29(2)(a)(ii). They submit that the question whether the State could retrench exemptions without adding the amendment to the Ninth Schedule should be examined on its merits. They argue that no return is mandatory where the challenge relates to the legislative competence and the challenged amendment; they emphasize that the appellants sought rule nisi to declare Annexure 1 to 3 ultra vires and to quash the impugned directions. They maintain that the High Court's reliance on the Ninth Schedule was misapplied and that the writ petition should be heard in accordance with law, allowing the petition to proceed and the challenged provisions to be adjudicated on constitutional grounds. They finally sought directions for early hearing and quashing the relevant provisions if found ultra vires.

Contentions of Respondents

Respondents submit that the Ninth Schedule shield is not absolute; even if the amendment to Section 29 is not in the Ninth Schedule, the effect is to delete the exemption with retrospective effect, altering exemptions previously granted to maintain religious rites. They argue that the High Court correctly observed that the amendments alter substantive rights and that the matter falls within the legislative domain; they contend that the writ petition cannot be allowed to hamper the amendment. They rely on the constitutional safeguards of the Ninth Schedule but argue that the amendment is not immune from challenge if within the scope of vires; the counsel submit that the legal validity of the amendment should be considered by the High Court on proper legal grounds.

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Extracted Judgment Text

Exact text extracted from official judgment records.

[2008] 2 S.C.R. 683 A 8 # SIRISIA STHAL, IMLI CHATI, MUZAFFARPUR & ORS. _v._ STATE OF BIHAR & ORS. > (Civil Appeal No.1001 of 2002) FEBRUARY, 11 2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] i _Bihar Land Reforms (Fixation of Ceiling Area and· Acquisition of Surplus Land) Act, 1961_ - _Vires of certain provisions of the Act challenged in writ petition_ - _High Court_ c _upheld the provisions_ - _On appeal, held: Order of High Court_ 1 _was without application of mind to the challenge raised_ - _Hence matter remitted to High Court for fresh consideration._ Appellant filed writ petition challenging vires of certain provisions of Bihar Land Reforms (Fixation of D Ceiling Area and Acquisition of Surplus Land) Act, 1961. High Court dismissed the writ petition. Hence the present appeal. Allowing the appeal and remitting the matter to High :E Court, the Court HELD: Since the High Court has not applied its mind to the challenge raised, and has erroneously referred to the 9th Schedule to the Constitution, it would be appropriate to set aside the impugned order of the High F Court and remit the matter to it for fresh consideration in accordance with law. [Para 6] [685-E, F] CIVILAPPELLATE JURISDICTION : Civil Appeal No.1001 of 2002. ' G > From the Judgment and Order dated 13.03.2001 of the High Court of Judicature at Patna in C.W.J.C. No. 10233 of 1995. ## S.B. Sanyal, Ranjan Mukherjee for the Appellants. 683 --\' [2008] 2 S.C.R. SUPREME COURT REPORTS 684 A Saurabh Kirpal and Gopal Singh for the Respondents. _r""_ The Judgment of the Court was delivered by **Dr. ARIJIT PASAYAT, J.** 1. Challenge in this appeal is to the order passed by a Division Bench of the Patna High Court B[dismissing the writ petition filed by the appellants. The writ ] petition was filed challenging vi res of certain provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short 'the Act'). The writ petition filed by the appellants was dismissed on the ground that no c[return was filed, and after preparation ][of ][draft statements they ] could have got opportunity to file objection. It was held that the writ petition was filed challenging vires of an enactment which was included in 9th Schedule of the Constitution of India, 1950 (in short the 'Constitution'). D D 2. In support of the appeal learned counsel for the appellants submitted that since the vires of certain provision were being challenged and the amendment to Section 29 of the Act was under challenge, the question of filing return did not arise. Further it was submitted that the amendment was not E[included ][in ][the ][9th ][Schedule as was observed by the High Court. ] Earlier, all the writ petitioners were granted exemption under Section 29(2) (a)(ii) of the Act to hold an extra unit required for the purpose of performing religious rites and its maintenance but by the amendment the same was taken away. F 3. Learned counsel for the respondent-State on the other hand submitted that though the amendment was not part of the 9th Schedule to the Constitution, yet the effect of the amendment is that the power to exempt stood deleted with retrospective effect. G 4. Prayers in the writ petition were to the following effect: "It is therefore, prayed that your Lordships may graciously be pleased to admit this application, issue Rule NISI against the respondents calling upon them to show-cause as to why the Section 2 of the impugned ordinance H **t** ... _t--_ _>._ "l - )--- _f_ ''f SIRISIA STHAL, IMLI CHATI, MUZAFFARPUR & ORS. 685 '....., c _v._ STATE OF BIHAR & ORS. [PASAYAT, J.] (Annexure 1) and the directions contained in Annexure 2 A be declared ultra vires of the Constitution of India and quashed after hearing the party or parties, rule may be made absolute; ## And/or ii) That such order, writ, direction or order may be passed to your Lordships as may deem fit and proper in the facts and circumstances of the case." B 5. Subsequently, the prayers were amended in the following terms: "It is, therefore, prayed that the prayed portion of the writ application be kindly permitted to be amended as followed in the light of the facts stated above:- "That after first prayer in the writ petition, the following be D added:- _.. ~ ~ RULE NISI be also issued against the respondents calling upon them to show cause as to why Section 2 of the impugned Bihar Act 8 of 1997 (Annexure 3 and the directions contained in para 5 (Gha)(vi) of the Annexure 4 be not declared ultra vires the Constitution of India and quashed and after hearing the parties RULE NISI be made absolute." E 6. Since the High Court has not applied its mind to the challenge raised and has erroneously referred to the 9th F Schedule to the Constitution, it would be appropriate to set aside the impugned order of the High Court and remit the matter to it for fresh consideration in accordance with law. Since the writ petition is of the year 1995, the High Court is requested to take up the matter early and decide the writ petition as early as G practicable, preferably by the end of October, 2008. 7. The appeal is allowed to the extent indicated without any order as to costs. K.K.T. Appeal allowed. H ~