BEDABALA DEVI Vs. STATE OF BIHAR
HIGH COURT OF PATNA
STATE OF BIHAR
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Ramaswami, J -
(1.) THE petitioner in this case Sm. Bedabala Devi alleges that her father Maharaj Kumar Mahima Niranjan Chakravarty executed a will dated 29-9-1929, wherein; he appointed the Official Trustee of Bengal to hold certain properties under trust for charitable & religious purpose. THE petitioner instituted an Administration Suit in the Original Side of the Calcutta High Court against the Official Trustee of Bengal. A compromise was effected between the parties, as a result of which a scheme was sanctioned by the Court and the petitioner was appointed Trustee in respect of touzi Nos. 551/9 and 608/1. As regards touzi No. 551/9 the petitioner was granted full right of ownership in lieu of arrear of maintenance. It is stated in the affidavit that the State Government in exercise of the powers conferred by Section 3 (1) of the Bihar Land Reforms Act has issued a notification declaring that title to the touais had vested in the State Government.
(2.) THE petitioner alleges that the notification is illegal and beyond the ambit of the jurisdiction of the State Government. THE petitioner asks that a writ in the nature of mandamus should be issued commanding the State of Bihar and the Deputy Commissioner of Santal parganas not to take possession of the estates which have been notified.
In support of the application, Mr. J. C. Sinha submitted in the first place that the Bihar Land Reforms Act did not apply to the district of Santal parganas. The argument of the learned counsel is founded upon Section 3 of Regulation III of 1872 which is to the following- effect:
"3(1) The enactments specified in the Schedule shall be deemed to be: in force in the Santal parganas, except (a) such portions of such enactments as have been repealed by any enactment specified in the Schedule, and (b) in the case of any enactments passed before the twenty-fifth day of August, 1886, such portions thereof as had on that day been repealed in the territories to which the enactments generally applied. (2) No other enactment, heretofore or hereafter passed shall unless the Santal parganas be expressly named therein, be deemed to apply to the said parganas, except so far as regards the trial and determination of the civil suits, referred to in Section 2 of Act 37 of 1855, in which the matter in dispute exceeds the value of one thousand rupees, when such suits are tried in Courts established under the Bengal, Agra, and Assam Civil Courts Act, 1887. (3) Notwithstanding anything hereinbefore, contained, the local Government may, by notification in the Calcutta Gazette (a) declare that any other enactment shall be deemed to be in force in the santal parganas, (b) withdraw any such declaration or (c) with the previous sanction of the Governor General in Council declare, that any enactment specified in the Schedule shall cease to be in force in the Santal parganas."
It was urged by the learned counsel that the touzis in dispute are located in Dumka and Jamtrara subdivisions of Santal parganas. As the Bihar Land Reforms Act does not expressly provide that the Act would operate in Santal parganas the learned counsel contends that the notification issued by the State Government is void and beyond its jurisdiction. But the argument of the learned counsel is not correct. It is true that the touzis in question are situated in a scheduled area but the provisions of Section 3 of Regulation III of 1872 are impliedly repealed as a result of the enactment of the fifth schedule of the Constitution. The fifth clause of part B of this schedule states that "Notwithstanding anything in this Constitution, the Governor or Rajpramukh, as the case may be, may by public notification, direct that any particular Act of parliament or of the legislature, of the State shall not apply to a Scheduled Area in the State or shall apply to any Scheduled Area in the State subject to such exceptions arid modifications as he may specify in the notification." This clause in the fifth schedule must be read in the context of Article 245 of the Constitution which states that "Parliament may make laws for the whole or any part of the territory of India, and the legislature of the State may make laws for the whole or any part of the State". The jurisdiction of the Bihar Legislature to legislate for the scheduled area of Sental parganas cannot therefore be doubted. In the present case Section 1 (2), Bihar Land Reforms Act expressly declares that the Act extends to the whole of the State of Bihar. It is not contended on behalf of the petitioner that the Governor has made my notification under Clause (5) of the fifth schedule directing that the Bihar Land Reforms Act shall not apply to Santal parganas or any portion of that district.
(3.) IT is manifest that the Bihar Land Reforms Act is validly applicable to all portions of the Santal parganas district, which have been declared to be scheduled Area. IT is manifest that the provisions of Regulation III of 1872 have been repealed by necessary implication as a result of the enactment of the fifth schedule of the Constitution and the argument of Mr. Sinha on this part of the case must fail.;
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