Smt. Uttra Kumari Vs. Bhakra Beas Management Board and ors. - Court Judgment

Excerpt:
- hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - it was further stipulated in the same order that she was to be treated on deputation like other employees from the state of haryana but was not entitled to any deputation allowance or extra pay, etc. to a mistress in their employment 3. in the written statement filed by the respondents, the impugned action is sought to be justified on the ground that as the petitioner at the time of her deputation to the then beas sutlej link project had clearly undertaken that she would not claim any benefit whatsoever while working on the post, she was now estopped by her conduct to claim any monetary benefit.m.r. agnihotri and amarjeet chaudhary, jj.1. petitioner smt uttra kumari joined the haryana education department on 3rd february, 1969, as j. b. t. teacher. during the service she also passed m. a. in 1976 and b. ed examination in 1980. in 1984 she was selected by the beas sutlaj link project, sundernagar, as b. ed mistress on deputation. accordingly, on 7th march, 1984, under order of the director of school education, haryana, chandigarh, her service were placed at the disposal of b.s.l project, sundernagar. it was further stipulated in the same order that she was to be treated on deputation like other employees from the state of haryana but was not entitled to any deputation allowance or extra pay, etc.2. later on when the state of haryana released the revised grade of pay to all b. ed qualified teachers, the petitioner was also granted the masters' scale on the basis of her academic qualifications that is m.a., b. ed by the state of haryana, with effect from the date she pay grade the qualification, that is 23rd june 1980. resultantly, the pay grade of the petitioner, which was earlier rs. 525-1050 was revised to rs. 1400-2600 with effect from 1st january 1986. there- upon, the petitioner represented to the bhakra beas management board (successor to the beas sutlej link project), which is a statutory body constituted under the punjab reorganisation act. 1966, for the grant of the same pay scale to her as was being granted by the b.b.m.b. to other mistresses in their employment. the request was however declined on the plea that the revised grade could not be granted to the petitioner as she was not entitled to claim any benefit whatsoever of the post of mistress while working on that post as she had not been posted as such with the b.b.m.b. aggrieved by the same the petitioner has approached this court for the issuance of a writ of mandamus directing the respondents to grant the same pay scale to the petitioner which is being granted by the b. b. m. b. to a mistress in their employment3. in the written statement filed by the respondents, the impugned action is sought to be justified on the ground that as the petitioner at the time of her deputation to the then beas sutlej link project had clearly undertaken that she would not claim any benefit whatsoever while working on the post, she was now estopped by her conduct to claim any monetary benefit.4. after hearing the learned counsel for the parties and having gone through their pleadings, we are of the considered view that the plea taken by the respondents is wholly unsustainable. the fact that the petitioner had undertaken at the time of her deputation to b.s.l.p., that she would not claim any benefit whatsoever while working on the post of mistress, could not be interpreted to mean that even if the pay scales were revised or some increase in dearness allowance or in some other allowance is announced by the central government or the state government or for that matter by the b.b.m.b. the same shall not be admissible to the petitioner for, the reason that she was not to draw any benefit while working with the board. the only object of submitting such an undertaking by a servant while proceeding on deputation is that he or she shall not be entitled to any deputation allowance or extra pay or any other monetary benefit attached to the post while on deputation. rather, if an employee gives even this undertaking at the time of deputation that he or she was willing to work in the existing pay scale or even on some consolidated pay, and later on due to inflationary trend or any other reason, the government announces an ad hoc increase or some financial benefit to its employees such an employee working on deputation shall be entitled to the receipt of the same in the same manner and at the same rate at which the same is admissible to other employees, no matter he or she had submitted an undertaking not to draw any benefit while proceeding on deputation.5. in the instant case, the position is very simple. the petitioner is m.a., b.ed., and is working as b.ed. teacher. in her present state of haryana she was entitled to draw the pay scale which was admissible to other m.a. b.ed. teachers since she has been selected and brought on deputation to the beas sutlej link project (now bhakra beas management beard), she will be entitled to the pay scale admissible to the b.ed. teachers in the employment of b.b.m.b. any other interpretation would lead discriminatory results violating article 16 of the constitution.6. accordingly, we allow this petition and direct the respondents to grant to the petitioner the pay scale of b.ed. teachers, that is, rs. 1640-2925, which is, the present pay scale being granted by the bhakra beas management board to the masters/mistresses in their employment. necessary benefits of pay-fixation, grant of increments, arrears, etc. on the basis thereof shall be released to the petitioner within a period of three months.