Haryana Vidyut Parsaran Nigam Ltd. Vs. Arya Nirman (Engineers, Consultants, Contractors And, General Order Suppliers) and anr. - 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. - xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 8. in this regard, it is also worthwhile to mention here that thf bare perusal of the circular dated 12.5.2004 of the board of directors of the petitioner clearly shows that the fee structure prescribed therein for the arbitrator, appears to be quite less, inadequate and unreasonable which is based on the pecuniary value of the amount of the dispute without going into the magnitude of the task or the quantity of the work which the arbitrator would require to do in the peculiar circumstances of a particular case.s.d. anand, j.1. the petitioner-haryana vidyut parsaran nigam ltd. (hereinafter referred to as 'the petitioner') and respondent no. 1, sector-6, panchkula (m/s arya nirman (engineers, consultants, contractors and general order suppliers) are parties to arbitration proceedings being conducted by respondent no. 2 shri d.p. bajaj, chief engineer (retd.).2. the petitioner herein filed a plea before the learned trial court for replacement of the arbitrator on the premise that he had fixed a higher amount of fee for self. in the context, reliance was placed upon a circular dated 12.5.2004 issued by the petitioner whereby certain criteria for award of fee in arbitration cases had been fixed. the plea, raised in the context, was that the fee fixed by the arbitrator was far in excess of the norm fixed by the petitioner. the plea did not find favour with the learned trial court which observed as under:however, when this court insisted repeatedly that since it was the petitioner, who had approached this court of law seeking the relief in question by way of filing the present petition, so, he had to stand on his own legs by way of showing the relevant law or citation on the point in controversy, then, the learned counsel for the petitioner in the name of relevant law/citation referred to the synopsis of section 39 as contained in chapter 10 under the heading 'miscellaneous' of the arbitration and conciliation act in a book written by pc markanda, adv., member, governing body of the indian council of arbitration wherein, it has been mentioned that the court has the jurisdiction and power to determine the dispute with regard to the fees between the arbitrator on the hand and the parties on the other hand and that the court had a power to decide what amount of fee was reasonable to be paid to the arbitrator and the balance of the money, if any, was to be refunded to the parties.xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx8. in this regard, it is also worthwhile to mention here that thf bare perusal of the circular dated 12.5.2004 of the board of directors of the petitioner clearly shows that the fee structure prescribed therein for the arbitrator, appears to be quite less, inadequate and unreasonable which is based on the pecuniary value of the amount of the dispute without going into the magnitude of the task or the quantity of the work which the arbitrator would require to do in the peculiar circumstances of a particular case.9. on the other hand, the fee structure prescribed by the arbitrator as mentioned by the petitioner in ex.p3 relating to 5th hearing dated 25.11.2006, appears to be quite reasonable and justified in the light of the fact that the aforesaid fee structure was liable to be shared by both the parties on 50-50 basis, which in turn means, that the petitioner had to pay just rs. 3,750/- per hearing, rs. 5,000/- lump sum as one time fee for study of documents, rs. 10,000/- as fee for writing of awarded and rs. 375/- as fee for secretarial services per hearing.3. the learned counsel, appearing on behalf of the petitioner, argues that fixture of a fee which is higher than the norms fixed by the petitioner is, by itself, a ground sufficient enough to justify the allowance of the petitioner's plea for replacement of the arbitrator.4. the plea is resisted by the learned counsel appearing on behalf of the respondent no. 1 who, in support of the plea, that there is all the justification for the arbitrator to fix the own fee, placed reliance upon sunder kukreja and ors. v. mohan lal kukreja and anr. : (2009) 4 supreme court cases 585 and order dated 27.2.2009 passed by a coordinate bench (t.s. thakur, c.j.) of this court in arbitration case no. 80 of 2006 (bhagwan dass & sons v. union of india (2009) 155 p.l.r. 142). in the latter case, the bench allowed the arbitrator to fix her own fee.5. in the circumstances, the plea raised on behalf of the petitioner-nigam is completely devoid of merit. the entitlement of the arbitrator to fix his own fee is authorized by the provisions of the arbitration and conciliation act, 1996 itself. the two judicial pronouncements relied upon by the learned counsel for the respondent no. 1 are also fully supportive of the view aforementioned. the arbitrator cannot be replaced just because the fee fixed by him is not in accord with the norms fixed by the petitioner. the petitioner, by the very nature of things, is a party to the arbitration proceedings. it cannot be heard to insist upon the replacement of the arbitrator just because the fee structure fixed by the arbitrator is not in accord with the norms fixed by the petitioner vide a circular.6. the petition shall stand dismissed.