Brijesh Kumar, J. - (1.) This is an appeal preferred by the State of Bihar against the judgment and order dated 25-9-1989 passed by the Patna High Court declaring, section 15(1) and 15(2) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (for short the Act), ultra vires of Articles 13 and 14 of the Constitution. It appears that the question of vires, interpretation and scope of various provisions of the Act came to be considered by a Full Bench consisting of three Honble Judges of the Patna High Court and considering the points raised and some decisions rendered earlier, the Full Bench held S. 15 of the Act ultra vires and further held that certain categories of disputes and matters could be entertained and decided by the civil court despite the restrictions placed under S. 4(b) and 4(c) of the Act and bar of jurisdiction of Civil court u/S 37 of the Act. The first and the foremost submission put forward by learned counsel for the appellant for consideration of this Court is that in an earlier Full Bench decision of the Patna High Court reported in AIR 1979 Patna 250, Ramkrit Singh and others vs. State of Bihar and others. The same question have been considered and decided inter alia the question of the validity of S. 15 and the impact of S. 4(b), S. 4(c) and S. 37 of the Act. The vires of S. 15 of the Act has been upheld in the case of Ramkrit Singh (supra) by the Full Bench, including the bar of jurisdiction of the civil court in respect of matters covered by notification u/S 3 read with S. 4(b) and 4(c) of the Act.
(2.) The provision contained under S. 4 (b) provides that after a Notification is published under S. 3(1) of the Act, no suit or other legal proceeding falling in the area notified, shall be entertained by any Court and S. 4(c) provides that every proceeding for correction of records and for declaration of rights or interest in any land or any other right, pending before any other Court or authority shall stand abated. Section 15 of the Act provides that the Consolidation Officer shall grant to every raiyat to whom holding has been allotted under the Scheme of Consolidation, a Certificate which shall be a conclusive proof of the title of such raiyat and similar certificate is provided to every under-raiyat having a right of occupancy or not but having been allotted a land under the Consolidation Scheme. It is also considered to be conclusive proof of the title of the under-raiyat. Section 37 attaches finality to the decisions and orders passed under the Act and the jurisdiction of the civil court is barred to entertain any suit or proceedings in respect thereof. The impugned judgment besides declaring S. 15 ultra vires has also diluted the effect of the provisions contained under Ss. 4(b), 4(c) and 37 of the Act, while holding that pending suits shall not abate unless specific order of abatement is passed by the Civil Court and that the suit would revive and proceeded with in accordance with law, in the event of cancellation of Consolidation Scheme or on its completion. And where the claim in respect of declaration of rights or interest in the land is incidental, such suits pending before the civil court or other authorities shall not abate. Bar of S. 37 has also been curtailed.
(3.) It has been submitted on behalf of the appellant that the Full Bench decision, impugned herein, is in direct conflict with the decision in the case of Ramkrit Singh (supra), in which case also same or similar arguments and grounds were raised. Our attention has been drawn to Paragraph 78A of the impugned Judgment, delivered on behalf of two Honble Judges and third Honble Judge concurring with it, holding that the decision in the case of Ramkrit Singh (supra) is not binding, having been rendered per incuriam. We quote the relevant paragraph 78A which reads as follows : "78A. As noticed hereinbefore, the Special Bench in Ram Krit Singhs case did not consider the question as to whether the consolidation authorities are courts of limited jurisdiction or not and thus it made an observation that civil court while disposing of the suits after revival thereof at the end of the consolidation proceedings, would merely pass a decree in terms of the decision of the consolidation authorities. The said observations must be held to have been rendered per incuriam inasmuch as in the cases where the jurisdiction of the civil court is not barred in terms of S. 4(b) or Section 37 of the Act, the civil Court cannot pass a decree only in terms of the decision of the consolidation authorities after revival of the suit. The said observations, therefore, are not binding upon this Court. In such a situation the civil Court will have jurisdiction to decide suits relating to such matter in respect whereof its jurisdiction is not barred either in terms of S. 4(b) or S. 37 of the said Act." ;