R.N. Sahay, J.
1. This second appeal has been referred to Full Bench under Rule I, Chapter V of the Patna High Court Rules for a decision whether the decision of this Court in Budhni Maintain v. Gobardhan Bhogta reported in 1984 BLT 226 whereby Section 46(1) of the Chotanagpur Tenancy Act was declared ultra vires under Article 19(1)(f) of the Constitution, is a right decision and if the answer is in the affirmative, whether the law declared in the said decision still holds valid after deletion of Article 19(1)(f) from the list of fundamental rights by virtue of 44th Amendment of the Constitution.
2. The appellant herein, Mathura Singh, filed the suit No. 26 of 1982 out of which this appeal arises, for a declaration that he was the rightful owner of the suit land and for a decree for confirmation of this possession. One of the issues in the suit was whether purchase of the suit land by the plaintiff-appellant form defendant was in violation of Section 46(1) of the C.N.T. Act which provides as follows:
46. Restrictions on transfer of their rights by raiyats.--(1) No transfer by a raiyat of his right in his holding or any portion thereof-
(a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent:
Provided that a raiyat may enter into a bhugut bandha mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgage be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B & O. Act VI of 1935) for any period not exceeding fifteen years:
Provided further that:
(a) an occupancy-raiyat who is a member of the Scheduled tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the scheduled tribes and who is a resident within the local limits of the area of the police station within which the holding is situate;
(b) an occupancy taiyat who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person who is a member of the Scheduled Castes, or, as the case may be backward classes and who is resident within the local limits of the district within which the holding is situate.-
(d)...any occupancy raiyat who is not a member of the scheduled tribes, scheduled castes or backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person....
3. There is no dispute that defendant-vendor had not obtained permission of the Deputy Commissioner before transferring the land in favour of the plaintiff. The Addl. Munsif held that the sale could not be held to be invalid for breach of Section 46(1) of the C.N.T. Act because defendant having transferred the land without obtaining permission, was estopped from raising such a plea. The suit was decreed in favour of the appellant. On appeal, the appellate court came to a contrary finding. It held that the sale was invalid because the defendant who was a member of the scheduled castes had transferred his property without permission of the Deputy Commissioner as enjoyed by Section 46(1) of the C.N.T. Act. The decree of the Munsif was reversed and plaintiff's suit was dismissed.
4. This appeal was in the first instance placed before S.B. Sinha, J., who was of the view that this case involves substantial question of law as to whether appellate court was right in reversing the judgment of the trial court on the ground that the sale deed executed in favour of the appellant by his vendor who was a member of the scheduled castes was hit by Section 46 of the C.N.T. Act. The learned judge was of the view that the case also involves consideration as to the effect of deletion of Article 19(1) of the Constitution of India by reason of 44th amendment of the Constitution and in the light of doctrine of eclipse. The case was referred to Division Bench for hearing. The learned Judges constituting the Division Bench were of the impression that the decision in Budhni Mahatain's case (supra) was given after Constitution 44th Amendment and that the learned Judges who decided Bhudhni Mahatain's case had not considered the effect of amendment of the Constitution by 44th Amendment. The case was, therefore, referred to a larger Bench for an authoritative decision.
5. Bhudhni Mahantain's case was no doubt decided after 44th Amendment Act which came into force on 20.6.79. Division Bench in Bhudni Mahatain's case was not obvious of the 44th Amendment Act. Constitution 44th Amendment Act had no bearing on the question which came up for the consideration before the Division Bench in Budlmi Mahatain's case. It is well settled that 44th Amendment Act was prospective in operation and not retrospective. Therefore, any law enacted prior to 20.6.79 (the date of 44th Amendment came into force) was open to challenge on the ground of contravention of fundamental rights as guaranteed under Article 19(1)(f) of the Constitution.
6. The only effect of detention was that the right to property lost its protection as a fundamental right. Server in his Constitutional Law of India at page 563 has observed that 'deletion of Article 19(1)(f) and insertion of Article 300A has no retrospective effect which came into effect from June 20, 1979. Hence Article 19(1)(f) would apply to all laws enacted before 20th June, 1979.
7. Section 46 of the Chotanagpur Tenancy Act has been included in the 9th Schedule of the Constitution. Article 318 of the Constitution of India provides that none of the Acts and Regulations specified in the 9th Schedule shall be deemed to be void or ever to have become void on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force."
8. In view of Article 318, inclusion of the Act in the 9th Schedule with effect from the date of its enactment irrespective of being inconsistent with fundamental rights its constitutionality cannot be quashed by court on such ground AIR 1972 SC 425 : AIR 1981SC 522 is unwarranted.
Article 318 saves validity of the Acts enumerated in the 9th Schedule with prospective effect from the date of enactment of the respective laws and not from the date of enactment of Article 318 or the inclusion of the Act in the 9th Schedule or any subsequent amendment of the Constitution. See AIR 1955 SC 47.
As held in AIR 1964 SC 1515, Article, 318 would apply even to Acts which have been struck down as invalid by judicial decisions.
Chapter VIII (Sections 46, 47, 48, 49; Chapter IX Sections 71, 71A, 718 and Chapter XVII - Sections 240, 241, 242 of the Chotanagpur Tenancy Act, 1908 are included in the 9th Schedule at item No. 209). In view of the inclusion of the Act in the 9th Schedule, Section 46 is now completely immune from attack for violation of Article 19(1)(f) of the Constitution.
9. This answers the questions referred to the Full Bench. It was stated that the learned Judges who referred this case to Full Bench were under the impression that decision in Budhni Mahatain's case was given without considering the effect of 44th amendment of the Constitution. That is not so since 44th Amendment was considered in para 11 of the judgment reported in 1984 PLJR 399 wherein it has been observed that "court was not called upon to decide the effect of Constitution 44th Amendment Act, 1978". It appears from para 11 that the learned Judges deciding Budlini Mahatain's case were under the impression that Constitution 44th Amendment Act was retrospective, but probably the offending provision under the C.N.T. Act was considered to be post-Constitution law. It does not appear as to why observations in paragraph 11 of the judgment were made.
10. However, we have also considered the question whether decision in Budhni Mahatain's case declaring proviso (b) of Section 46 of the C.N.T. Act ultra vires to Article 19(1)(f) as it stood prior to 44th Amendment Act was correct.
11. We have after thorough consideration of the matter came to the conclusion that the decision was not correct. The conclusion holding Section 46 as ultra vires, is based on the decision in 1969 BLJR 134 Bhageran Thakur v. Kebal Singh. In Bhageran Thakur's case, the validity of Sections 49(c) and 49(m) of the Bihar Tenancy Act was considered. The Act was declared ultra vires to Article 19(1)(f) because the said section was not protected by Article 19(1)(f) as stood prior to 44th amendment. Restrictions imposed by Sections 49(c) and 49(m) was intended to protect backward classes also. It was held that the backward classes could not be clubbed with scheduled tribes under Article 19(1)(f). Their Lordships held that on the same parity of reasons on the commencement of the Constitution restrictions imposed by proviso (b) of Section 46 of the Act in relation to scheduled castes became modified and devoid of any legal force and/or binding effect. Bhageran Thakur's case related to backward classes and this case and Budhni Mahatain's case relate to members of scheduled castes. Their Lordships did not consider single decision of the Supreme Court while deciding such a vital issue as constitutional validity of a pre-Constitution law. I am constrained to observe that direct decision of this Court in Shashtripado's case, AIR 1967 Patna 25 which upheld the constitutional validity of Section 46(1)(c), was not brought to the notice of their Lordships deciding Budhni Mahatain's case. In Shastripado's case, Mahapartra and A.B.N. Sinah, JJ, held as follows:
Before examining the reasonableness or otherwise of the restriction imposed on the right of transfer under proviso (c) to Sub-section (1) of Section 46 of the Act, if may be pointed out that the expression "interests of the general public" in Clause (5) of Article 19 is very wide, and the State is always competent to impose restrictions under Clause (5) on grounds of social and economic policy. The right to freedom of citizens to acquire, hold and dispose of properties may thus be circumscribed on such grounds as well. It may further be clarified that the mere fact that the impugned provisions does not directly affect the citizens of "other States of the Republic of India or even of the other divisions of the State of Bihar itself, does not, in my opinion necessarily imply that the restrictions imposed thereunder are not in the interests of the general public. Legislation affecting a particular class or a particular area would quite obviously, directly affect the member of that particular class or the inhabitants of that particular area only, but it the object of the legislation was the protection and safeguarding of the interest of a particular class or of persons residing in particular area, or, the object was the removal of some serious abuse or grievance or discontent of that particular case or particular areas, it must be held that such a legislation indirectly affect the public in general. It can hardly be disputed that a legislation for securing one or another of the objects referred to in Clauses, (b) and (c) of Article 39 of the Constitution must be held to be a legislation in the interests of the general public.
9A. Now, one of the objects behind the impugned provision and the restriction contained therein appears to be shut out and eliminated absentee or outside owners of agricultural lands situate in Chota Nagpur. Such persons, not being residents of the Districts within the local limits of which the holding concerned was situate, are extremely unlikely to take the optimum interest necessary for the agricultural development of those lands. Once, however, they become residents of the district or of contiguous Police Stations, if may be presumed that they have thrown in their lot with the other permanent agricultural tenants of the area concerned and will be as much interested in the development or conservation of those lands as the other residents. This is quite clearly in the interests of the general public. Further, it is common knowledge that the rich mineral resources of Chota Nagpur, particularly its mica and coal deposits, have attracted a large number of persons with ample resources from different parts of India with the primary object of exploiting those minerals. Such persons are generally equipped with greater resources that the indigenous population; and in order to protect the comparatively weaker sections, namely, the indigenous population, from the stronger, namely the persons who have come to Chota Nagpur with large resources, a restriction of the type laid down in the impugned proviso serves, in my opinion, to a large extent to prevent the latter section of the people form grabbing the agricultural lands of the area by taking advantage of the comparative poverty of the indigenous section and thus in the result reducing the agricultural occupancy raiyats into a mass of landless labourers. From this point of view as well, the restriction imposed and challenged in the present case must be held to be in the interests of general public.
After all it cannot be denied that the Constitution after recognizing the rights as to property in Sub-clauses (f) and (g) of Article 19 thereof proceeds to make it perfectly clear that these rights are not absolute and cannot be treated as ends in themselves. The Constitution itself envisages those rights being co-related with certain inevitable obligations imposed on all the citizens of India in the interest of achieving socio-economic justice and, if a certain legislative provision, as indicated above seeks to promote and safeguard the interests of the agricultural community comparatively weaker then the numerous persons surrounding them or living with them temporarily, as effectively as it may, by preventing the former from losing their agricultural lands to the latter and thus becoming landless laboureres, it must be held that the provision is in the interests of the general public. I am, accordingly, satisfied that the impugned proviso, namely, proviso (c) to Sub-section (1) of Section 46 of the Act is not ultra vires the Constitution and is fully saved under Article 19(5) of the Constitution.
12. There is yet another decision of this Court in Basini Goalin v. Amrit Gon and ors. . In this decision,
Section 27 of the Santhal Parganas Settlement Regulation, which is pari materia with proviso (b) to Section 46 of the C.N.T. Act was held intra vires or Article 19(1)(f) of the Constitution. It was held that restrictions regarding transfer of holding laid down in Section 27 of the Regulation 3 of 1872 were reasonable as they were in the interests of the raiyats in the district of Santhal Parganas with a. view to maintain their social status, preserve their culture and prevent the extinction of the village community.
13. In my opinion, the judgment in Buhhni Mahatain does not lay down the correct law and it was also rendered per incuriam. In my opinion, the learned Judges put a very narrow construction of Article 19(1)(f) of the Constitution. According to their Lordships, Article 19(1)(f)(v) cannot be extended to members of scheduled castes. It is meant to protect only members of the scheduled tribes. This interpretation is wholly erroneous. Article 19(1)(f)(v) under Sub-clauses (d), (e) and (f)(as it stood prior to 44th amendment) provides nothing in Sub-clauses (d), (e) and (f) of the said clauses shall effect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing reasonable restrictions on the exercise of any of the rights conferred by the said sub-clause either in the interest of the general public or for the protection of the interests of any scheduled tribe."
it was held as follows:
In deciding the reasonableness or otherwise of the restrictions, the Courts have to confine themselves to an examination of the restrictions in the abstract with reference merely to their duration of territorial extent, and that it is beyond their province to look up to the circumstances under which or the manner in which the restrictions have been imposed. It is not possible to formulate an effective test which would enable the Courts to pronounce any particular restriction to be reasonable or unreasonable.
15. In AIR 1952 Calcutta 273 (FB), it was held that several circumstances must be taken into consideration in judging the reasonableness and in particular the purpose of the Act, the conditions prevailing in the country at the time, the duration of the restriction, its extent and nature.
16. In AIR 1978 SC 771, the Supreme Court has held that in considering the reasonableness of legislative provision, restriction exercised on fundamental rights under Article 19, the Court may take into consideration the following:
(a) directive principle of the State policy.
(b) mattes of common knowledge, and the state of affairs which can be conceived as existing at the time of impugned legislation.
The view that under Article 19(1)(f)(v), the restriction on exercise of fundamental rights can be imposed only for the benefit of members of the scheduled tribes ignores the clause "in the interest of general public".
17. In Ram Sarup and Ors. v. Munshi and Ors. , the Constitution Bench of the Supreme Court was called upon to decide whether Section 15 of the Punjab Pre-emption Act, 1913 was violative of Article 19(1)(f) of the Constitution. Section 15 imposed restriction on the right of a vendor with regard to disposal of his agricultural land. In paragraph 16 of the report, Supreme Court observed that "the right of pre-emption granted by the statute is a restriction on the right to hold and dispose of property on the part of the vendor" the right guaranteed by Article 19(1)(f) of the Constitution. Their Lordships then proceeded to consider whether restriction imposed in reasonable and in the interest of general public within the meaning of Article 19(1)(f) of the Constitution. It was held that the provision contained in Section 15(c) of the Punjab Pre-emption Act vesting the right of pre-emption in respect of agricultural land in the owners of the estate, though restricts the right of the vendor in respect of the disposal of his property, yet the restriction is a reasonable one and not repugnant to Article 19 of the Constitution of India.
18. This decision states that it is a fallacious interpretation that reasonable restriction can only be made in the interest of scheduled tribes. Any restriction which is reasonable and in the interest of general public, is covered by Article 19(1)(f) as it stood prior to amendment.
19. Punjab Act did not protect merely members of the scheduled tribes, restriction though drastic, was held to be reasonable and in the interest of general public.
20. In the instant case, the restriction is not drastic at all. It is only a minor restriction. Proviso only requires the vendor to obtain prior permission of the Deputy Commissioner. It cannot be said to be unreasonable restriction.
21. I would next refer to a decision in AIR 1967 SC 940, wherein Section 24 of the West Bengal Non-agricultural Tenancy Act was held to be not ultra vires Article 19(1) of the Constitution as it does not put any unreasonable restriction on the right of the under-tenant to transfer non-agricultural land. Section 24 of the West Bengal Non-agriculture tenancy Act provides that if non-agricultural land in a non-agricultural tenancy is transferred, immediate landlord may within the prescribed period apply for such land to be transferred to him. It was held that restriction contained in Section 24 cannot by any means be treated as unreasonable restriction. Hence the contention as to constitutional invalidity of Section 24 could not be raised.
22. These two cases which clearly lay down that if restriction is reasonable, then it cannot be declared to be unconstitutional, irrespective of the fact whether it is in the interest of general public or in the interest of scheduled tribe. None of these decisions or any of the decisions of the Supreme Court interpreting Article 19(1)(f) was considered in Budhni Mahatain's case.
23. I would lastly refer to a very important decision of the Supreme Court in Sri Machegowda v. State of Karnataka . Supreme Court in this case held that Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act-Sections 4 and 5 are not constitutionally invalid. The Supreme Court observed in paragraph 22 as follows:
The next contention urged is that Sections 4 and 5 of the Act are violative of Article 14 of the Constitution inasmuch as these sections make special provisions only with regard to Scheduled Castes and Scheduled Tribes to the exclusion of persons belonging to other communities. This Act has undoubtedly been passed for the benefit of members of the Scheduled Castes and Scheduled Tribes can be considered to be separate and distinct classed particularly in the matter of preservation and protection of their economic and educational interests. In view of the peculiar plight of these two classes, the Constitution in Article 15(4) makes specific mention of these two classes and in Article 16(4) speaks of backward class of citizens. One of the directive principles as contained in Article 46 of the Constitution enjoins that "The State shall promote with special care the educational and economic interests of the weaker sections of the people and in particular of the Scheduled Castes and Scheduled Tribes and shall protect them from social injustice and all forms of exploitation". The object of this Act is to protect and preserve the economic interests of persons belonging to Scheduled Casts and Scheduled Tribes and to prevent their exploitation. For the purpose of the present Act, the classification has a clear nexus to the object sought to be achieved. We are therefore of the opinion, that special provisions made for the resumption of granted lands, originally granted to the members of Scheduled Castes and Scheduled Tribes and restoration of the same to the original grantees or their heirs and legal representatives and falling them to other members of these communities do not infringe Article 14 of the Constitution.
This decision also was not brought to the notice of the Division Bench. It must be held that the decision in Budhni Mahatain's case was not a good law, particularly when a direct authority on the question of validity of Section 46 in AIR 1967 Patna 25 (supra) was not considered.
24. In the result, this appeal has no merit and it is accordingly dismissed without costs.