MOTIPUR SUGAR FACTORY LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ petition challenges the order of the Additional Collector, Muzzaffarpur, dated 13th November, 1976 at Annexure '2' in Ceiling Case No. 25 of 1973-74 passed under Section 5(1) (iii) of the Bihar Land Reforms (Fixation of Ceilling Area and Acquisition of Surplus Land) Act, 1961 (briefly 'the Act'). By that order the Additional Collector held that the transfers of 943.76 acres of land on 31 August, 1970 by the petitioner with the shareholders of the Sugar Factory, Motipur were made with the object of defeating the provisions of the Act. He accordingly annulled those transfers and declared that the said land shall be deemed to be held by the petitioners for the purposes of determining the ceiling area. The petitioners went in appeal against that order and it is pending before the Collector, Muzaffarpur while persuing this statutory remedy available to the petitioners, they have also invoked the jurisdiction of this Court under Articles 226 and 227 of Constitution for quashing the said order of the Additional Collector.

(2.) By order of this Court dated 18th January, 1978 the petitioners were allowed to amend the writ petition by addition a new paragraph 32-A containing additional grounds of Annexure '6' challenging the vires of the Act. In the writ petition no such ground has been taken. In the counter-affidavit the respondents have stated that after due enquiry, it transpired that the sale of 943.75 acres of land was made on only one day, i.e. on 31 August, 1970, just eight days before the commencement of the revised Land Ceiling Act with the shareholders of the sugar factory who were either members of the same family or relatives. It is alleged that the transactions were sham or benami, the land having been found in physical possession of the sugar factory. As these transactions were held to be made with the object of defeating the provisions of the Act and to keep more land than the ceiling limit, they were annulled under Section 5(1) (iii) of the Act. It is also stated that the writ petition is not maintainable in view of the new constitutional provisions without exhausting the alternative remedy of appeal provided in Section 30 of the Act which is already pending.

(3.) It is contended by the learned counsel for the petitioners that the Act is unconstitutional, ultra vires and void because it affects the basic structure of the Constitution. Reliance has been placed upon the case of Kesvananda Bharati, (AIR 1973 SC 1461) known as the Basic structure case. The core of his submission is this : According to the preamble to the Cocstitution the people of India have adopted, enacted and given to themselves the Constitution and that people are sovereign, the constition was enacted by the people and it is for the people. Sovereignity, therefore, rests in the people. People of India are an entity and they cannot be disintegrated. The Act under challenge offends the basic structure by ignoring the existence of a large number of women and children who form integral part of the Indian people. Sovereignity of the people cannot be touched by the Legislature. The Act treats as non tst a vast majority of people belonging to the female sex and children whose rights have been ignored in the Act. The Act, therefore, annihilates them of the capacity cf being individuals having their civic rights and it does not simply deprive them of their property rights. The existence of the individual is denied, his civic rights inherent in his existence are being denied and an individual as such is not recognised under an artificial concept of the word "family". Individual member of the society are treated as civilly dead under the device of their artificial merger in clear disregard of social and lexicographic connotation of the term. Learned counsel also submitted that there was lack of legislative competence to enact the Act and fixing the ceiling for the family of an artificial concept. He docs not dispute that fixing of ceiling limit is within the competence of the Legislature but he argued that the manner in which the land reform was being sought was not within the Legislative competence. A power to reform, learned counsel says, cannot exterminate or efface the existence of the people or a large section thereof from their legal and factual existence. It was further submitted that according to the Explanation to Section 2 (ee) of the Act defining "family" the word "person" included a Company, but a company cannot have a spouse. On these grounds it is urged that the Act offends the basic structure of the Constitution and it is not protected by Article 31-B of the Constitution even if it was insert id in the Ninth Schedule of the Constitution. We, however, find no substance in the point. The basic structure principle cannot be applied for determing the validity of an Act of the Parliament or a State Legislature. It can be used only` for challenging the law amending the Constitution. In V.U. Uttawar v. State, (AIR 1977 Bombay 99) it was held that ordinary law either made by Parliament or by the State Legislature cannot be challenged on the ground of the basic structure or constitutional frame work or principle. This case was affirmed by the Supreme Court in D. G. Mahajan v. State of Maharashtra, (AIR 1977 SC 915). The same view was taken in Smt. Indira Nahru Gandhi v. Raj Narain, (AIR 1975 SC 2299). I am, therefore, of the opinion that the Act which was put in the Ninth Schedule of the Constitution cannot be questioned on the ground of the Basic Structure theory. Had there been any merit in the contention we might have considered the question of referring this case to a larger Bench as provided in Article 228 (3) of the Constitution which provides :