CHAIT RAM Vs. SIKANDAR CHOUDHARY

JUDGEMENT

(1.) This is an appeal by the decree-holder against the appellate order of the 2nd Additional Subordinate-Judge, Sasaram, upholding the contention of the respondent judgment-debtor that his raiyati holding was not liable to sale in execution of the decree in view of the bar imposed by Section 49M (l)(b) of the Bihar Tenancy Act (hereinafter referred to as the Act).

(2.) It is admitted that the judgment-debtor is a Mallah by caste. It is also not denied that the property sought to be sold in execution of the decree is the raiyati holding of the judgment-debtor. On behalf of the latter, it was contended that, in exercise of the powers conferred by Explanation (3) to Section 49B of the Act, the Government of Bihar, in notification No. A/T-1015/55-1091-R., dated the 7th February, 1956, declared "Mallahs" to be socially and educationally backward. Hence, according to the counsel for the respondent, the raiyati interest of a Mallah iudgment-debtor was not liable to be sold in execution of any decree except as provided in Sub-section (2) of Section 49M, which, admittedly, has no application here. On behalf of the decree-holder, however, Mr. Rai contended that the above notification was unconstitutional as offending Clause (1) of Article 15 of the Constitution, and that it was not saved by Clause (4) of that Article. Mr. Rai further urged that the said notification would offend the fundamental rights guaranteed to the petitioner under Article 19(l)(f) also. But this point is concluded by a Bench decision of this Court in Bhawani Prasad Jaiswal v. Bikramjit Choudhury, 1962 BLJR 845, and, as the correctness of that decision was not challenged before us, it is unnecessary to discuss this point again. With respect, I would agree with the view taken in that decision.

(3.) A preliminary point was raised to the effect that the appellant was not entitled to rely on Article 15(1) of the Constitution, inasmuch as there is no discrimination against the appellant The impugned notification may amount to discrimination In favour of Mallahs as a caste; but it was urged that Clause (1) of Article 15 prohibited discrimination against a person solely on the ground of his caste, and did not prohibit any statutory provision in favour of a person on the ground of his caste. In rpply to this argument, however, it was contended by the appellant that the impugned notification discriminated against those castes who were not enumerated in it, and denied them protection of Section 49M of the Act while conferring the benefit of the same on the castes mentioned therein. Thus, a Iudgment-debtor, who was not described as one of the backward classes, was liable to have his raiyati holding sold away in execution of a decree; whereas a iudgment-debtor, who belonged to one of the castes enumerated in the notification, would obtain the benefit of his raiyati holding being exempt from sale in execution of a decree subject, of course, to the conditions and restrictions mentioned in Section 49M. As regards the right of the decree-holder to challenge the constitutionality of Section 49M, it was urged that, if he had obtained a decree against a non-Mallah, he would have been able to execute the decree in due course; whereas, by obtaining a decree against a Mallah, he was faced with the disability provided in Section 49M. Hence, though the impugned notification undoubtedly discriminated in favour pf the castes mentioned therein, nevertheless it is "law" which discriminated against the castes not mentioned therein solely on the ground of their caste, and it had the effect of unduly restricting the right of the decree-holder to execute his decree. This point is being fully dealt with by my learned brother Untwalia, J. I, however, thought it unnecessary to decide this point because, even if it be assumed that there was discrimination against the castes not mentioned in the notification, nevertheless I am satisfied that the law will be saved by Clause (4) of Article 15.