RAJKISHORE SINGH Vs. BHUBNESHWARI SINGH

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution to quash the order of the Commissioner of Bhagalpur dated the 4th December, 1965. (Annexure C). In Purnea Miscellaneous Appeal No. 51 of 1965-66, upholding the order of the Collector of Purnea, dated the 29th July 1966 (Annexure B). In an application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962. (Bihar Act 12 of 1962) (hereinafter referred to as the Act), and dismissing the appeal of the petitioner.

(2.) On the 19th December, 1963, the petitioner purchased 3 acres of land appertaining to R.S. plot No. 1363/3367 in village Satkodaria in the district of Purnea from one Sant Lal Singh, opposite party No. 2. On the 9th March, 1964, opposite party No. 1 Bhubneshwari Singh, filed an application under Section 16(3) of the Act, claiming a right of pre-emption on the ground that he was the raiyat of the plot adjacent to the aforesaid plot and as such was entitled to pre-emption. The petitioner while not challenging the fact that Bhubneshwari Singh was a raiyat of the adjoining land, nevertheless urged that the petitioner was also in possession of plot No. 1485 which was also a piece of land adjoining R.S. plot No. 1363/3367 and that he had purchased the same from one Dwarka Lal Singh by another sale deed dated the 23rd April 1965. The learned Collector, however, ignored this transaction of sale on the sole ground that it took place after the filing of the petition under Section 16(3) of the Act by Bhuneshwari Singh. He held that the petitioner was neither a co-sharer nor the owner of the adjacent land and hence could not defeat the claim of Bhuneshwari Singh for preemption. His order was upheld on appeal by the learned Commissioner, who also held that the purchase by the petitioner of plot No. 1485 on the 23rd April, 1965 after the institution of the present proceeding, should not be taken into consideration in deciding whether the petitioner was the owner of an adjacent plot.

(3.) One of the important grounds taken in this writ petition was that the provision of Section 16(3) of the Act was unconstitutional as offending some of the fundamental rights. This argument is, however, not tenable, because the Act was one of the statutes included in the Ninth Schedule of the Constitution (see item 26). Hence by virtue of Article 31(B) of the constitution the provisions of the Act will survive even if they are inconsistent with any of the fundamental rights conferred by the Constitution. The recent judgment of the Supreme Court prospectively overruling any amendment made to the fundamental rights cannot help the petitioner because they did not give retrospective effect to their decision.