1. This is a reference made by the learned Senior Subordinate Judge, of Mahasu in a proceeding in execution of a decree under Section 113 and Order 46, Rule 1, C. P. C. The decree under execution not being a non-appealable one, and moreover, the question involved being as to the validity of a Regulation, the former and not the latter was the correct provision of the Code for making the reference.
2. In execution of a money decree the judgment-debtor pleaded the bar of Section 15, Bushahar Alienation of Land Regulation of 1986 B. against the attachment of his land. This section provides that no land belonging to a member of an agricultural tribe shall be sold in execution of any decree or order of any Civil or Revenue Court, whether made before or after the commencement of the Regulation. Section 2(g) of the Regulation defines the term 'members of agricultural tribe' as Bushaharis following the profession of agriculture and belonging to certain castes enumerated therein. One of the castes so enumerated is Rajput to which the judgment-debtor belongs. The decree-holder contended that Section 15 of the Regulation is void under Article 13(1) of the Constitution inasmuch as it is inconsistent, with Article 15, which lays down that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
3. The learned Senior Subordinate Judge has referred the following question for the opinion of this Court:
'Whether section 15 of the Bushahar Alienation of Land Regulation 1986 B. is inconsistent with any of the provisions of Part III of the Constitution of India and is therefore void?' The learned Senior Subordinate Judge is himself of the opinion that the section in question of the Regulation is void since it is in conflict with Article 15(1) of the Constitution. The learned counsel for the decree-holder and the learned Government Advocate on behalf of the State of Himachal Pra-desh, impleaded as a party to this reference under Order 27-A, Rule 2 of the Code, supported the opinion of the referring Judge. The judgment-debtor, who was not represented by any counsel, opposed it.
4. The learned counsel for the decree-holder contended that as the Punjab Alienation of Land Act (No. 13 of 1900), Section 16(1) of which corresponded mutatis mutandis with Section 15 of the Regulation, has been repealed, the particular provision which is the subject-matter of this reference should be deemed to contravene some one or the other of the provision of the Constitution. The learned counsel was unable to produce the repealing notification, and he admitted that the notification did not mention the reason of repeal. That being so, from the mere fact of repealment of the said Act it cannot validly be held that Section 15 of the Regulation in question is ultra vires the Constitution.
5. The opinion expressed by the learned Senior Subordinate Judge appears to be correct sinceSection 15 of the Regulation clearly discriminates in favour of one set of judgment-debtors on the ground of caste and is therefore inconsistent with Article 15(1) of the Constitution. The provision is therefore void under Article 13(1).
6. Let the above opinion of this court be transmitted to the Court concerned. The costs of this reference shall be costs in the case. The parties have been directed to appear in the Court which has made the reference on 16-6-1953.