JUDGMENT
1. In all these suits, which have been heard together, a common question of law arises for determination namely, whether the provisions of the Ranchi District Aboriginal Raiyats Agricultural Lands Restoration Act (Bihar Act I) of 1948) are ultra vires the Government of India Act, 1935, and whether the orders of the Deputy Commissioner passed under Section 4 of that Act, effecting restoration of the holding sold for arrears of rent are also consequently illegal and ultra vires.
2. In Title Suit No. 130 of 1953, the plaintiff, Julius Oraon, has alleged that the disputed land was comprised in the occupancy holding of three brothers, Bhandari Charwa, Chandru and Bandhu, but after the revisional survey there was a partition between the three brothers. It appears that there Was default in the payment of rent on the part of the tenants and thereafter the landlord, the Maharaja of Chota Nagpur, obtained a decree against them for arrears of rent in Rent Suit No. 593 of 1938-39 and in execution of that decree, in Execution Case No. 739 of 1939-40 the landlord purchased the holding and obtained delivery of possession through court by ejecting the aforesaid tenants. It is further alleged by the plaintiff that on 3-8-1943, there was a raiyati settlement by the landlord with the plaintiffs of the disputed holding and the plaintiff was placed in possession thereof. On 4-2-1948, the Bihar Legislature enacted the impugned Act, namely, the Ranchi District Aboriginal Raiyats’ Agricultural Lands Restoration Act (Bihar Act II of 1948). Section 4 of this Act is important and it is necessary to reproduce it in full:
“If the holding of any aboriginal raiyat has been sold in execution of a decree for arrears of rent in any of the years 1930 to 1942 in pursuance of the Congress Movement and if the aboriginal raiyat or if he is dead, his legal representative
(a) applies in the prescribed form and in the prescribed manner to the Deputy Commissioner within twelve months from the date of the commencement of this Act for the restoration of such holding to his ownership and possession and ,
(b) deposits with the Deputy Commissioner within the time allowed by him such sum as may be determined by him having regard to the amount for which the holding was sold to the auction purchaser or alienated to the person in possession of the holding either in whole or in part by means of a bona fide transfer for valuable consideration and the amount of any compensation for improvements effected to the holding which the Deputy Commissioner may deem fair and equitable,
the Deputy Commissioner shall make an order in writing restoring such holding to the ownership and possession of such aboriginal raiyat, or as the case may be of his legal representative :
Provided that the Deputy Commissioner before making an order under this section shall make an enquiry in the prescribed manner after giving the parties interested a reasonable opportunity of being heard.”
Section 2 (1) of the Act, defines “aboriginal raiyat” to mean, in relation to any agricultural land in the district of Ranchi sold in execution of a decree for arrears of rent a raiyat or under raiyat belonging to a backward tribe as defined in part III of the Thirteenth Schedule to the Government of India (Provincial Legislative Assemblies) Order, 1930, and claiming the membership of an association commonly known as Tana Bhagats and specified in an order made in this behalf by the Deputy Commissioner within three months from the date of the commencement of the Act as having defaulted the payment of rent in pursuance of any movement launched or believed to have been launched by the Indian National Congress in any of the years 1930 to 1942 (hereinafter referred to as the Congress Movement).
It appears that on 5-4-1948 the Sub-divisional Officer of Gumla, who was empowered under Subsection (3) of Section 2 of the Act, made an order upon a application made by the defendants under Section 4 of the Act, for restoration of the holding. The application was allowed by the Sub-divisional Officer on 1-6-1948. An appeal was taken by the plaintiff from the order of the Sub-divisional Officer to the Deputy Commissioner, but the Deputy Commissioner affirmed the order of the Sub-divisional Officer on 5-8-1948, and it is alleged by the plaintiff that he was ejected from the land on 13-9-1948.
The case of the plaintiff is that the provisions of section 4 of Bihar Act II of 1948 are ultra vires the Government of India, Act, 1935, and consequently the order of restoration made by the Sub-divisional Officer of Gumla under Section 4 of the Act, as also the order of the Deputy Commissioner on appeal, are illegal and ultra vires. The plaintiff has, therefore, prayed for a declaration to this effect and for recovery of possession of the disputed land and also for mesne profits till the date of delivery of possession.
3. The suit was contested by the defendants, Musammat Saniaro Uraon, and also by the State of Bihar, who filed separate written statements. The following issues were framed by the Additional Subordinate Judge of Ranchi :
“1. Has the plaintiff any cause of action?
2. Has the court jurisdiction to try this suit?
3. Is the Ranchi District Aboriginal Raiyats Agricultural Lands Restoration Act, 1948 ultra vires of the Provincial Legislature?
4. Is the order of the restoration by the S.D.O. and D.C. without jurisdiction?
5. Is the plaintiff entitled to any mesne profits?
6. To what relief, if any is the plaintiff entitled?”
In the other title suits the material facts are similar in character and the issues framed are identical.
At the time of the hearing of these suits learned Counsel appearing on behalf of the plaintiffs in all these suits based their arguments on issues Nos. 3 and 4, namely, the issues with regard to the constitutional validity of Act II of 1948 and the legality or otherwise of the order of the Sub-divisional Officer passed in favour of the respective defendants, under Section 4 of that Act and the order of the Deputy Commissioner made in appeal. The learned Counsel did not press the other issue and they also specifically said that they would not press for mesne profits in any of these suits.
4. The main issue presented therefore for determination in these suits is the constitutional validity of section 4 of Bihar Act II of 1948 as it was originally enacted. It is necessary to state that the Act has been amended by Bihar Act XXVI of 1951 and also by Bihar Act XVIII of 1956. These amendments have subsequently altered the character of the provisions of the original Act, In the present case we are, however, concerned with the-constitutional validity of Section 4 of Bihar Act II of 1948 as it originally stood before the Amending Acts were passed.
5. The main contention put forward by learned Counsel on behalf of the plaintiff is that the fixation of compensation for the restored holding under Section 4 (b) of the impugned Act is arbitrary and it cannot be regarded as true compliance with the requirements of Section 299 (2) of the Government of India Act which is to the following effect;
“299 (2) Neither the Dominion Legislature nor
a provincial Legislature shall have power to make
any law authorising the compulsory acquisition for
public purposes of any land, or any commercial
or industrial undertaking or any interest in, or in
any company, owning any commercial or industrial
undertaking unless the law provides for the pay
ment of compensation for the property acquired
and either fixes the amount of the compensation,
or specifies the principles on which and the manner
in which, it is to be determined.”
In support of this argument learned Counsel relied!
upon the decision of this Court in Chhaya Devi v.
State ILR 35 Pat. 847: ((S) AIR 1957 Pat 44) (A),
in which a similar question arose for determination
with respect to Section 7(2) of the Kosi Area (Restoration
of Lands to Raiyats) Act 1951, which was to the
following effect:
“7. (2) The amount to be determined under Clause (b) of Sub-section (1) shall be the cost of improvements, if any, effected on the holding or portion thereof, which the Collector may deem fair, and equitable and,
(a) where the holding or portion thereof is in possession of the landlord or any other person to whom it was sold in execution of a decree for arrears of rent
(i) In the case of an entire holding or if only a portion of a holding was sold, in the case of the whole of such portion a sum equal to the entire amount, if any, which the raiyat or any person having a claim against the raiyat may have withdrawn out of the proceeds of the sale of such holding or portion and the aggregate of the amount mentioned in the sale proclamation for the realisation of which the holding or portion was sold and of the amount of costs necessarily incurred by the landlord, or any person to whom it was sold in connection with his application for delivery of possession, and
(ii) in the case of a portion of a holding if the entire holding was sold, or part of a portion, if only a portion of the holding was sold, such part of the sum mentioned in Sub-clause (i) as the Collector may deem fair and equitable after considering all the circumstances of the case including the value of the entire land sold and of the portion to be restored;
(b) where the holding or portion thereof is in possession of the landlord as a result of execution of a decree for an ejectment under Sub-section (2) of Section 66 of the Bihar Tenancy Act, 1885; a sum equal to the amount of arrears of rent with interest thereon legally recoverable on the date of the institution of the suit for ejectment and costs of the suit mentioned in the decree passed under Sub-section (2) of Section 68 of the Bihar Tenancy Act, 1885:
(c) where the holding or portion thereof is in possession of the landlord as a result of abandonment under Section 87 of the Bihar Tenancy Act, 1885 a sum equal to the amount of arrears of rent with interest thereon legally recoverable on the date of abandonment and
(d) where the holding or portion of such holding is in possession of any person, other than the landlord or any person to whom it was sold in execution of a decree for arrears of rent, by settlement, sale, mortgage or any other kind of transfer, a sum equal to the amount of salami, consideration money or where there is no document of transfer or where no consideration money is mentioned in the document of transfer, any amount that the Collector may deem fair and equitable in the circumstances of the case; Provided that in the case of a settlement, sale, mortgage, or any other kind of transfer made or created at any time after 31-12-1950, the Collector shall hear the raiyat and the parties to the transfer and make such inquiry as he thinks fit in respect of the amount of the salami or consideration money mentioned in the document of transfer, and if he is satisfied that the amount was mentioned in the document with the object of obtaining a higher amount under this clause, determine the actual amount of salami or consideration money paid under the document.”
6. It was argued by learned Counsel that the provisions of Section 4 of Bihar Act II of 1948 are similar in character and the principle laid down by the Bench of this Court in ILR 35 Pat. 847 : ((S) AIR 1957 Pat 44) (A) must be applied to the present case. It was contended that the compensation should be fixed with reference to the value of the land at the time of the restoration to the raiyat in pursuance of the order passed by the Collector under Section 4. It was submitted that the compensation was fixed under Section 4 with reference to the date of the sale of the holding in execution of the rent decree and so the principle of compensation laid down under Section 4 is arbitrary and there is a violation of the provisions of Section 299 of the Government of India Act. Reference was made in this connection to the decision of the Supreme Court in the State of West Bengal v. Mrs. Bela Banerjee 1954 SCR 558: (AIR 1954 SC 170) (B).
7. In our opinion, the argument of Counsel for the plaintiff is well founded. We hold that this case is governed by the principle laid down by this Court in ILR 35 Pat 847 : ((S) AIR 1957 Pat 44) (A) and for the reasons given in that case it must be held that the provisions with regard to compensation under Section 4 cannot be regarded as true compliance with the provisions of Section 299 of the Government of India Act, and the provisions of Section 299 of the Government of India Act have thus been violated.
It must, therefore, be held that the provisions of Section 4 of Bihar Act II of 1948 are illegal and ultra vires and the order made by the Sub-divisional Officer under Section 4 of that Act, restoring the possession of the holding to the defendants as also the order of the Deputy Commissioner in appeal are illegal and ultra vires. It follows, therefore, that the plaintiff is entitled to a decree for recovery of possession of the land in each of these thirteen suits. As the plaintiff in each of these suits has not pressed for mesne profits, we do not grant a decree for mesne profits to the plaintiffs in any of these suits. As the private defendants have not appeared in these suits, there will be no order as to costs as against them. We also do not propose to pass any orders as to costs against the State of Bihar in any of these suits.
8. On behalf of the State of Bihar it was pointed out in the course of argument that after the passing of the Constitution Fourth Amendment Act, 1955, Bihar Act II of 1948 has been revivified or revitalised. It was pointed out on the basis of the reasoning in ILR 35 Pat 847 : ((S) AIR 1957 Pat 44)(A) that the cloud or eclipse was removed after the passing of the Constitution (Fourth Amendment) Act, 1955, that is after 27-4-1955.
But in the present case we are concerned with. Bihar Act II of 1948 as it stood before the date of the passing of the Constitution (Fourth Amendment) Act, 1955. In all these suits the orders of the Subdivisional Officer restoring the holdings to the raiyats under Section 4, and also the orders of the Deputy Commissioner in appeal, were made in 1948, long before the passing of the Constitution (Fourth Amendment) Act of 1955. We hold for the reasons explained by this Court in ILR 35 Pat 847 : ((S) AIR 1957 Pat 44) (A) the effect of the Constitution (Fourth Amendment) Act, 1955 is not to validate or legalise such proceedings which were taken and concluded in the year 1948.
9. For the reasons we have already given, there must be a declaration given in all these suits that the respective plaintiffs are entitled to a decree for recovery of possession of the suit land. There will be no decree with regard to mesne profits or with regard to costs of the suits in favour of the plaintiffs in any of these suits.
10. Accordingly all the suits are decreed in favour of the respective plaintiffs on the above terms.