CIVIL WRIT JURISDICTION CASE No.10233 OF 1995 ----- In the matter of an application under Article 226 of the Constitution of India. Sirisia Sthal,Imli Chatti Muzaffarpur ----(Petitioners) Versus STATE OF BIHAR & ORS ---- (Respondents) For the Petitioners : Mr. Shivajee Singh, Senior Advocate with Mr. Shyam Bihar Prasad Mr. P.K.Bhartiya For Religious Trust Board Mr. K.N.Choubey, Sr.Adv.with Mr. A.N. Choubey, For the State Mr. Anil Kumar Jha,G.A.2 with Mr. Uday Bhan Singh,JC to G.A.2. P R E S E N T THE HON'BLE MR.JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA ---- Prasad & Sinha,JJ. The State Legislature enacted the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. Said Act has been included as Item No.26 of the Ninth Schedule of the Constitution of India. Section 5 of the Bihar Land Reforms Act, hereinafter referred to as the Act, provides that no person shall hold land in excess of ceiling area as indicated therein. Section 29 (2)(a)(ii) as originally enacted, conferred discretion to the State Government to exempt from the operation of Section 5 of the Act, class III land not exceeding two hundred forty acres or equivalent area of other classes which in the opinion of the State Government necessary for the purpose of performing religious rites and for maintenance of 2 religious institution. State Government also possesses power to extend the period of exemption. Section 29((2)(a)(ii) of the Act, which is relevant for the purpose, reads as follows : “29. Exemptions:_ xxx xxx xxx (2) (a) The State Government may, by notification in the Official Gazette, exempt from the operation of section 5.- xxx xxx xxx “(ii)So much of land not exceeding two hundred and forty acres of class III land or equivalent area of other classes owned land held under personal cultivation by any religious institution of a public nature on the date of the commencement of this Act, as may be determined by the Collector of the district in the prescribed manner to be necessary for the purposes of performing religious rites and maintenance of the religious institution for a specified period and may, from time to time, in like manner, extend the period of exemption. Section 11 of the Bihar Land Reform (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1972 substituted Section 29 (2) (a) of the Act. Same reads as follows : “11. Amendment of section 29 of Bihar Act XII of 1962.- In section 29 of the said Act.- (b) in sub-section (2), for clause (a), the following clause shall be substituted, namely, (a) The State Government may, by notification in the Official Gazette, exempt from the operation of section 5- xxx xxx xxx “(ii) So much of land not exceeding fifteen acres of class I land or equivalent area of other classes owned and held under personal cultivation 3 by any religious institution of a public nature on the date of the commencement of the Act as may be determined by the Collector in prescribed manner to be necessary for the purposes of performing religious rites and maintenance of the religious institution.” The Governor of Bihar promulgated Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment Ordinance 1995. Section 2 of the said Ordinance provided for deletion of Section 29(2) (a) (ii) of the Act. Ultimately, an Act, i.e. Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act 1995 (Bihar Act 8 of 1997) was enacted and Section 2 thereof provided for deletion of Section 29 (2)(a)(ii) of the Act, akin to what was done by the Ordinance. Section 2 of the aforesaid Act reads as follows: “2.- Amendment of section 29 of the Bihar Act 12, 1962- In the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961 (Bihar Act 12, 1962) (hereinafter referred to as the said Act) sub-clause (ii) of clause (a) of sub-section (2) of section 29 shall be deleted and shall always be deemed to have been deleted.” Prayer in the writ application is to declare Section 2 of the Bihar Act 8 of 1997 ultravires. It may be mentioned here that this writ application was dismissed by order dated 13.3.2001 passed by a Division Bench of this Court. However, on appeal, the Supreme Court set aside the order and while doing so, observed as follows: “6.- Since the High court has not applied its mind to the challenge raised and has erroneously referred to the 9th Schedule to the constitution, it would be appropriate to set aside the impugned order of the high court and remit the matter to it for fresh consideration in accordance with law. Since the writ petition is of the year 1995, the High Court is 4 requested to take up the matter early and decide the writ petition as early as practicable, preferably by the end of October, 2008.” This is how the writ petition has been listed before us for consideration. It is relevant here to state that in the writ application, an application for intervention has been filed by the Bihar State Board of Religious Trust and it has supported the contention of the petitioners. We have heard Shri Shivajee Singh for the petitioners, Mr. K.N. Choubey, Senior advocate, for the intervenor Bihar State Board of Religious Trust and G.P.II for the State. It has been contended on behalf of the petitioners that Section 2 of the Bihar Act 8 of 1997 deleting Section 29(2) (a)(ii) of the Act and depriving the State the power to grant exemption is ultravires Article 26 of the Constitution of India. It has been pointed out that Article 26 of the Constitution of India guarantees freedom to manage religious affairs and to establish and maintain institution for religious and charitable purpose and in case, the State Government is denuded of the power to exempt institution from operation of Section 5 of the Act, same shall be directly in breach of the right conferred under that Article. We do not find any substance in the submission. In our opinion, it is Section 5 of the Act, which has put ceiling on holding of land. This Act has been included in Ninth Schedule of the Constitution making it immune from attack on the ground of infringement of fundamental right. By enacting Section 29 ((2)(a)(ii) of the Act, the State Legislature had conferred 5 power to the State Government to exempt institution of certain category in specified circumstances from the ceiling limit under Section 5 of the Act for specified period. It is not in controversy that the Legislature has power to enact such law. It is well settled that when the Legislature has power to make law, it has power to amend and repeal the law. We are of the opinion that section 2 of Bihar Act 8 of 1997 in no way affects the fundamental rights of the petitioners. In that view of the matter, we hold unhesitatingly that deletion of section 29 ((2)(a)(ii) of the Act by Section 2 of the Bihar Act 8 of 1997, of 1997 is not ultravires. It is next contended that even if the Legislature has the power to enact law, it does not possess power to enact it retrospectively. This argument has only been noted to be rejected. It is well settled that when the Legislature has the power to enact, it has power to enact retrospectively. It has lastly been submitted that Section 2 of the Bihar Act 8 of 1997 is ultravires as it shall have the effect of annulling the exemption already granted. Section 29(2)(a)(ii) of the Act, before its repeal, had provided for exemption from the operation of Section 5 of the Act for specified reason and for specified period, which can be extended from time to time. Petitioners have not brought on record any material to show that exemption granted earlier has been annulled. 6 It is well settled that this Court does not answer academic question. Provision in a Statute cannot held to be ultravires only on the ground that it is possible to be abused and illegal orders may be passed. We hasten to add that in case exemption granted to the petitioners is annulled, they shall have the liberty to assail the same in accordance with law. We are not expressing any opinion as to whether after deletion of Section 29(2)(a)(ii) of the Act, it is possible or not, as the said question does not fall for determination in the decision in the present writ application. In the result, we do not find any merit in the application and it is dismissed accordingly, but without any order as to cost. (C.K.Prasad) (Shailesh Kumar Sinha) Patna High Court, Dated, 11th July, 2008. NAFR/ ahk.