IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.1047 of 1996 ==================================================== 1. Usha Devi wife of Mahesh Choudhary. 2. Ramrup Choudhary, 3. Mahesh Choudhary, both sons of Sukhdoe Choudhary. All residents of village Dhouni, P.S. Rajoun, District-Banka. …………………………………… Petitioners Versus 1. State Of Bihar 2. Secretary Government of Bihar, Department of Revenue and Land Reforms, Old Secretariat, Patna. 3. Deputy Secretary, Government of Bihar, Department of Revenue and Land Reforms, Old Secretariat, Patna. 4. Commissioner, Bhagalpur Division, Bhagalpur. 5. Collector, Banka 6. Additional Collector, Banka 7. Deputy Collector, Land Reforms, Banka. 8. Anchal Adhikari, Rajoun Anchal, District-Banka ……………………………………… Respondents ==================================================== Appearance : For the Petitioners: Mr. Ganpati Trivedi, Advocate Mr. Prabhakar Kumar, Advocate Mr. Madan Mohan, Advocate For the Respondents: Mr. Tej Bahadur Singh, AAG-7 Mr. R.K. Mishra, A.C. to AAG-7 ==================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMRNT (Per: HONOURABLE THE CHIEF JUSTICE) 2 20.04.2011 The petitioners are the owners of the land, Khata No. 44 Khesra No. 45 admeasuring 3 decimals, situated at Dhawni P.S. Rajoun, District-Banka and the other parcels of land described in paragraph 5 of the writ petition. The petitioners are running an eatery on the aforesaid piece of land admeasuring 3 decimals. Indisputably, the petitioners have converted agricultural land to commercial use. In Misc. Case No. 4 of 1994-95 initiated by the revenue authorities, a rent was sought to be recovered from the petitioners for commercial use. It is the said action of the revenue authorities which has triggered the present writ petition. The petitioners have also challenged the constitutional validity of the Bihar Tenancy (Amendment) Act, 1993. Both the learned advocates agree that the matters at issue have been decided by the Division Bench of this Court in the matter of Amar Singh versus State of Bihar and other coordinate matters [ 2007(3) PLJR 225] in favour of the writ petitioners. In the said judgment the Bench held as under : “ 42. As a result of the aforesaid discussions it is held as follows: (i) The impugned provisions are within the legal competence of the State Legislature. (ii) Although described as rent, the impugned levy is in fact, a tax on land covered by Entry 49 of List II of the 7th Schedule to the Constitution. 3 (iii) The impugned tax on land is discriminatory because it is imposed only on a class of land owners i.e. raiyats with occupancy rights covered by Chapter V of the Act and not to other class of land holders covered by Chapters III, IV, VI and VII of the Act. (iv) The denial to the occupancy raiyats the right to use their land in any manner of their choice is arbitrary, unreasonable and against Articles 14 and 19(1)(g) of the Constitution. (v) The words-“to the extent of 5 per cent” in first proviso to sub-section (4) of Section 23 of the Act is bad in law on account of excessive delegation and abdication of legislative function by the legislature. (vi) Rule 4 of the Rules is bad in law for excluding other permissible modes to determine the real market value of the land which is likely to result in unfair and unjust levy of rent/tax. (vii) The proviso to Rule 5 is ultra vires the first proviso to Section 23 (4) of the Act.” In view of the aforesaid judgment this petition is allowed. The impugned action of realization of commercial rent is quashed and set aside and consequent proceeding in Misc. Case No. 4 of 1994-95 are quashed and set aside. The parties will bear their own cost. Patna High Court/ 20th April 2011/ Bibhash/A.F.R. ( R.M. Doshit, CJ.) (Jyoti Saran, J.)