A.S. Bains, J. - (1.) THIS is an application on behalf of respondents Nos. 3 to 46 for the dismissal of the writ petition pending against them, on the ground of its having abated. It is averred in the application that since the petitioner has not availed of alternative, adequate and efficacious remedy by way of appeal, review and revision under Section 8 of the Punjab Land Reforms Act, 1972, read with Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887, therefore, the writ has abated and cannot be decided on merits in view of the provisions of Section 58 of the Constitution (42nd Amendment) Act No. 91 of 1976. Admittedly, against any action of the Collector under the Land Reforms Act, appeal, review and revision lie under Section 18 of that Act which reads as under: - - The provision in regard to appeal, review and revision under this Act shall, so far as may be, be the same as provided in Sections 80, 81, 82, 83 and 84 of the Punjab Tenancy Act, 1887 (Act XVI of 1887). From this provision it is plain that the appeal, review and revision lies against any action of the Revenue Authorities under the said Act. Section 58 of the Constitution (42nd Amendment) Act, 1976, is in the following terms: - - 58 (1) Notwithstanding anything contained in the Constitution, every petition made under Article 226 of the Constitution before the appointed day and pending before any High Court immediately before that day (such petition being referred to this section as a pending petition) and any interim order (whether by way of injunction or stay or in any other manner) made on or in any proceedings relating to, such petition before that day shall be dealt with in accordance with the provisions of Article 226 as substituted by Section 38. (2) In particular, and without prejudice to the generality of the provisions of sub -section every pending petition before a High Court which would not have been admitted by the High Court under the provisions of Article 226 as substituted by Section 38 if such petition had been made after the appointed day, shall abate and any interim order (whether by way of injunction or stay or in any other manner) made on, or in any proceedings relating to, such petition shall stand vacated : * * * * According to this provision, every petition before the High Court which would not have been admitted under the present provisions of Article 226 of the Constitution as substituted by Section 38 of the Constitution (42nd Amendment) Act, 1976 shall abate if such petition had been made after the appointed day under the Act
(2.) MR . Anand Swarup, learned counsel for the petitioner, contends that the petition could abate only if it fell under Article 226 (3). His precise argument is that the present petition does not fall under this Article as it hits his rights enshrined in Part III of the Constitution, that is to say, his grievance is covered by sub -clause (1) (a) of the Article and not (1) (b) or (1)(c) thereof. Part III of the Constitution deals with the enforcement of Fundamental Rights. But this argument has to be rejected in view of the inclusion of the Punjab Land Reforms Act in the Ninth Schedule by the Constitution (Thirty -fourth Amendment) Act, 1974, at Serial No. 78. When any Act is included in the Ninth Schedule, then under Article 31 -B of the Constitution, its provisions cannot be challenged. The argument of the learned counsel is that he is not challenging the provisions of the Act but he is challenging the action of the Collector. But in para 15 of the writ petition he has clearly stated that section 9 of the Act is ultra vires of the Constitution and the Collector is only proceeding under section 9 of the Act. The respondents 3 to 46 are tenants on the land in dispute for a very long time. They have been in continuous possession of the land. It is argued that the institution is a Thokardwara and Section 9 cannot apply. But according to the Return filed by the respondents it is denied. In para 13 of the Return filed by the Sub -Divisional Officer and Collector, Agrarian, it is averred that the land in question was declared surplus, being the ownership of Mahant Ram Dass, in the year 1961. Thus, the land in question is the individual ownership of Mahant Ram Dass which was declared surplus in the year 1961. As the petitioner has not availed of the remedies under the Act by way of appeal, review and revision, this petition is not maintainable in view of section 58 of the Constitution (42nd Amendment) Act, 1976. Consequently C.M. Application No. 1455/78 is allowed and the Writ Petition is dismissed as abated.;