BANARSI YADAV Vs. KRISHNA CHANDRA DASS

JUDGEMENT

(1.) In an appeal filed before the Commissioner of Bhagalpur Division under Section 30 of the Bihar Land Reforms (Fixation of Celling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) hereinafter called the Act, to challenge an order made by the Additional Collector under Section 16 (3) of the Act, the constitutional validity of the latter provision was challenged. Some decisions of the Supreme Court with reference to the customary law of pre-emption were cited before him. Learned Commissioner thereupon directed a reference to be made to this Court, without expressing under what provision of law it was being made; but presumably it was under Section 113 read with Order 46 of the Code of Civil Procedure, hereinafter called the Code. When this reference came up for hearing before a Division Bench of this Court, feeling that there are some conflicting decisions on the point the case was referred to a larger Bench. That's how it has come before us for answering the reference.

(2.) Mr. J. C. Sinha, appeared in support of the reference and submitted that the reference is competent and Section 16 (3) of the Act is constitutionally invalid as being violative of Articles 14 and 19 of the Constitution. Mr. S. K. Jha, learned Government pleader II, appeared on behalf of the State and Mr. Shreenath Singh for the party against the reference.

(3.) Having heard learned Counsel for the parties, we are of the opinion that the reference is incompetent. The Commissioner is not a Court which can make a reference to this Court under Section 113 read with Order 46 of the Code. Section 113 reads as follows-