MAHABIR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two applications have been heard one after the other. Since several points raised in these applications are common, they are being disposed of by a common judgment I propose, after giving necessary facts of each case, to deal with the constitutional and legal points raised first, before examining their impact on the two oases. In dealing with those questions I shall notice the arguments of the learned counsel appearing in both the writ applications. Facts of C. W. J. C. No. 74 of 1974:

(2.) Petitioner No. 1 in this case is father of petitioners Nos. 3 and 4, petitioner No. 3 being major and petitioner No. 4 being minor. Petitioner No. 2 is the wife of petitioner No. 1. According to the petitioners petitioner No. 1 was the Karta of the joint Mitakshara family consisting of himself, his wife and his two children. For the sake of convenience and management of the joint family properties petitioners separated from each other and each of them got l/4th share in the joint properties. In the year 1967 a return was filed by petitioner No. 1 under the provisions of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 (the 'Act'). This was registered as case No. 34 of 1967-68. This proceeding, it is asserted, is still pending. The Act was amended by Bihar Act 1 of 1973 and Bihar Act 9 of 1973. Various amendments have been introduced by these Acts in the parent Act. The main effect of these amendments is the lowering of ceiling prescribed under the parent Act and introduction of the concept of family (as defined in the Act), as a unit for the purpose of determining the ceiling. After the amendment the petitioner filed a fresh return. According to the petitioners, without complying with the provisions of Section 8 and Rule 8 of Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Rules (the 'Rules), Draft publication (An-nexure-2) has been made under Section 10 (1) of the Act. Subsequently, there was a final publication of the draft statement (Annexure-3). The validity of Section 2 (i) of the Bihar Act. 1 of 1973 and the various actions taken by the authorities including Annexures 1. 2 and 3 are under challenge. Facts of C. W. J. C. No. 1460/74:--

(3.) In this writ application there are five petitioners. Petitioner No. 1 is the father of petitioner No. 3. Petitioner Nos. 2 and 3 are the wives of petitioner Nos. 1 and 3 respectively. Petitioner No, 5 is an idol, Sri Ram Jankiji Maharaj, According to the petitioner the family of Petitioner Nos. 1 to 4 was a joint Hindu family governed by Mithakshara School of Hindu Law. Rai Bahadur Bachu Pra-sad Singh father of petitioner No. 1, was head and karta of the family till his death in the year 1957. In the year 1962 after the death of Sri Bachu Prasad Singh a private partition took place among the members of the joint family by which the properties were divided by metes and bounds, petitioner Nos. 1 to 4 having been allotted l/4th share each. These petitioners are claiming to be in possession of lands allotted to the share of each of them in their own right. The petitioners further aver that by common agreement and with consent of all concerned there was a dedication of about 39.69 acres of land on 25-3-1956 by a registered deed of Samarparnama to Sri Ram Janki Ji Maharaj, the family deity. Petitioner No. 5 is the Shebait of the deity. The deity, it is said is in possession of the dedicated lands. Some portions of the land belonging to the petitioners and the buildings thereon constitute the homestead of the petitioners. On a portion of the land there is a cold storage. Petitioner No. 1 filed a return in pursuance of the provisions of the Act on 4-7-1973. On 15-3-1974 the Additional Collector Patna, (respondent No. 2) passed an order holding, on the basis of verification report of the revenue staff, that petitioner Nos. 1 and 2 were entitled to possess 25 acres of land and that petitioner Nos. 3 and 4 were entitled to hold another 25 acres. Since according to the order option under Section 9 of the Act had not been exercised by the land-holders certain lands as described in Schedules A and B were permitted to be retained by them and the lands mentioned in Schedule C, it was observed, may be declared as surplus land. A draft statement under Section 10 of the Ceiling Act was directed to be prepared and published according to the rules. A copy of the notice in pursuance of this order is Annexure-9, This Annexure does not indicate that any notice was to be served on Petitioner No. 3, the notice being addressed only to petitioner No. 1. Apart from the question of constitutional validity of Section 2 (1) of Act 1 of 1973, learned counsel for the petitioners challenged the legality of the various actions taken on several grounds which shall be noticed hereinafter. Validity of amending Act 1 of 1973.