Holding

The Supreme Court held that the High Court failed to apply its mind to the challenge and incorrectly referred to the 9th Schedule, thereby setting aside its order and remitting the matter for fresh consideration.

Summary

The appellants challenged the constitutionality of certain provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, specifically an amendment to Section 29 that removed an exemption for extra units used for religious rites. They contended that the amendment was not protected by the 9th Schedule of the Constitution and therefore could be subject to judicial review. The Patna High Court dismissed the writ petition, holding that no return was filed and that the amendment fell within the 9th Schedule. On appeal, the Supreme Court held that the High Court had not applied its mind to the substantive constitutional challenge and had erred in relying on the 9th Schedule. Accordingly, the Supreme Court set aside the High Court order and remitted the matter for fresh consideration, directing an early hearing, and allowed the appeal without costs.

Issues considered

Whether the amendment to Section 29 of the Bihar Land Reforms Act, 1961 is covered by the 9th Schedule of the Constitution and thus immune from judicial review.
Whether the Patna High Court correctly dismissed the writ petition on the ground that no return was filed.
Whether the High Court applied its mind to the constitutional challenge raised by the appellants.

Legislation cited

Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961s. 29, s. 29(2)(a)(ii)
Constitution of Indias. 9th Schedule

Subjects

constitutional lawjudicial reviewland reform9th Scheduleultra vireswrit petitionSupreme CourtHigh Courtamendmentexemption

Judgment

[2008] 2 S.C.R. 683

SIRISIA STHAL, IMLI CHATI, MUZAFFARPUR & ORS. A
v.
STATE OF BIHAR & ORS.
(Civil Appeal No.1001 of 2002)
FEBRUARY, 11 2008
8
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

i Bihar Land Reforms (Fixation of Ceiling Area and·
Acquisition of Surplus Land) Act, 1961 - Vires of certain
provisions of the Act challenged in writ petition - High Court c
upheld the provisions - On appeal, held: Order of High Court 1

was without application of mind to the challenge raised - Hence
matter remitted to High Court for fresh consideration.
Appellant filed writ petition challenging vires of
certain provisions of Bihar Land Reforms (Fixation of D
Ceiling Area and Acquisition of Surplus Land) Act, 1961.
High Court dismissed the writ petition. Hence the present
appeal.
Allowing the appeal and remitting the matter to High :E
Court, the Court
HELD: Since the High Court has not applied its mind
to the challenge raised, and has erroneously referred to
the 9th Schedule to the Constitution, it would be
appropriate to set aside the impugned order of the High F
Court and remit the matter to it for fresh consideration in
accordance with law. [Para 6] [685-E, F]
CIVILAPPELLATE JURISDICTION : Civil Appeal No.1001 '
of 2002.
G
From the Judgment and Order dated 13.03.2001 of the
High Court of Judicature at Patna in C.W.J.C. No. 10233 of
1995.

S.B. Sanyal, Ranjan Mukherjee for the Appellants.
683 H

-~
684 SUPREME COURT REPORTS [2008] 2 S.C.R.
--\' -
A Saurabh Kirpal and Gopal Singh for the Respondents.
r""
The Judgment of the Court was delivered by
Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
the order passed by a Division Bench of the Patna High Court
B dismissing the writ petition filed by the appellants. The writ
petition was filed challenging vi res of certain provisions of Bihar
Land Reforms (Fixation of Ceiling Area and Acquisition of
Surplus Land) Act, 1961 (in short 'the Act'). The writ petition
filed by the appellants was dismissed on the ground that no
t
c return was filed, and after preparation of draft statements they
could have got opportunity to file objection. It was held that the
...
writ petition was filed challenging vires of an enactment which
was included in 9th Schedule of the Constitution of India, 1950 t--
(in short the 'Constitution').
D 2. In support of the appeal learned counsel for the
appellants submitted that since the vires of certain provision
were being challenged and the amendment to Section 29 of >.
the Act was under challenge, the question of filing return did not
"l
arise. Further it was submitted that the amendment was not
E included in the 9th Schedule as was observed by the High Court.
Earlier, all the writ petitioners were granted exemption under
Section 29(2) (a)(ii) of the Act to hold an extra unit required for
~
the purpose of performing religious rites and its maintenance

F
but by the amendment the same was taken away.
3. Learned counsel for the respondent-State on the other
hand submitted that though the amendment was not part of the
9th Schedule to the Constitution, yet the effect of the amendment
is that the power to exempt stood deleted with retrospective
)--- - f

effect.
G
4. Prayers in the writ petition were to the following effect:
"It is therefore, prayed that your Lordships may graciously
be pleased to admit this application, issue Rule NISI
against the respondents calling upon them to show-cause
H as to why the Section 2 of the impugned ordinance
''f
SIRISIA STHAL, IMLI CHATI, MUZAFFARPUR & ORS. 685
v. STATE OF BIHAR & ORS. [PASAYAT, J.]

'....., (Annexure 1) and the directions contained in Annexure 2
be declared ultra vires of the Constitution of India and
A

quashed after hearing the party or parties, rule may be
made absolute;
And/or
ii) That such order, writ, direction or order may be passed B
to your Lordships as may deem fit and proper in the facts
and circumstances of the case."
5. Subsequently, the prayers were amended in the following
terms: c
"It is, therefore, prayed that the prayed portion of the writ
application be kindly permitted to be amended as followed
in the light of the facts stated above:-
"That after first prayer in the writ petition, the following be
D
added:-
_..
RULE NISI be also issued against the respondents calling
~ upon them to show cause as to why Section 2 of the
impugned Bihar Act 8 of 1997 (Annexure 3 and the
directions contained in para 5 (Gha)(vi) of the Annexure 4 E
be not declared ultra vires the Constitution of India and
quashed and after hearing the parties RULE NISI be made
absolute."

• ~
6. Since the High Court has not applied its mind to the
challenge raised and has erroneously referred to the 9th
Schedule to the Constitution, it would be appropriate to set aside
F

the impugned order of the High Court and remit the matter to it
for fresh consideration in accordance with law. Since the writ
petition is of the year 1995, the High Court is requested to take
up the matter early and decide the writ petition as early as G
practicable, preferably by the end of October, 2008.
7. The appeal is allowed to the extent indicated without
any order as to costs.

K.K.T. Appeal allowed. H

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