Babu Lal Vs. State of Haryana 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. - 22/67/81-csiii dated 15.7.85, the benefit of reservation at the time of initial recruitment as well as in the matter of promotions is admissible to the scheduled castes and backward class candidates belonging to the haryana state only and not to those belonging to a state other than haryana.m. rama jois, c.j.1. the question arises for consideration in this letters patent appeal is : whether respondent no. 3, who belongs to a caste declared as scheduled caste in the state of himachal pradesh and who has joined service of state of haryana sometimes in the year 1970, is entitled to the benefit of reservation for promotion against a vacancy reserved for promotion to persons belonging to the sheduled caste ?2. the brief facts of the case are these : --respondent no. 3 hails from the state of himachal pradesh and belongs to a caste which is declared as scheduled caste in the state by notification issued under article 341 of the constitution of india. he was appointed as an assistant against a general category post in the state of haryana in the year 1975.the appellant belongs to a caste which is declared as scheduled caste in the state of haryana and was appointed a clerk against a reserved vacancy. he was promoted an assistant against a vacancy reserved for scheduled caste.during december 1991, one vacancy of deputy superintendent reserved for scheduled castes became available. respondent no. 3 claimed that post on the ground that he belongs to scheduled caste. his claim was rejected and the appellant was promoted. the writ petition was filed by respondent no. 3 questioning the legality of promotion of the appellant on the ground that as both the appellant and respondent no. 3 belongs to scheduled caste and respondent no. 3 was senior, he was entitled to promotion against the vacancy meant for scheduled caste.3. in support of his claim that he was entitled to promotion against the vacancy reserved for scheduled caste, he relied on letter dated 18-12-1973 annexure p-5, addressed by the commissioner and secretary, haryana, department of social welfare, to all the heads of department of haryana. the relevant portion of the letter reads thus :--'i have been instructed to draw your kind attention to govt.'s letter no. 6076-1-72/15594-693 dated 15th september, 1972 and advice you that this matter has been enquired into and it has been decided that the employees of scheduled caste/scheduled tribes, who are in the service of the haryana government, they should also be cpnsidered as bonafide residents of haryana and they alongwith their children should be given benefit of reservation in govt. service.'the language of the above letter is quite clear. according to the above letter, a person who belongs to scheduled caste or scheduled tribes of another state and joined the service of haryana government was also to be considered as bonafide resident of haryana for the purpose of reservation in the service of the state of haryana as against this, the learned counsel for the appellant relies on a subsequent letter dated 15-7-1985 issued by the chief secretary to government, haryana, copy of which is annexed as annexure r-3/3. the relevant portion of which reads as under :--'subject :--reservation benefits extension of the same, to scheduled castes, backward classes, ex-servicemen and the physically handicapped persons only who are domiciles of the haryana state.sir,i am directed to refer to circular letter no. 6880-sw-i-71/1051-52, dated 20.1.1972. issued by the commissioner and secretary to government haryana, social welfare department (copy enclosed) vide which the reservation benefit was only given to those scheduled castes and backward classes member who were the domiciles of the haryana state and not to those belonging to other states.2. the question regarding giving the benefit of reservation to those ex service-men and physically handicapped persons who are domiciles of haryana state was under consideration of the government. after careful considering the matter, it has been decided by government to grant the benefit of reservation to only those ex-servicemen and physically handicapped persons, who are domiciles of the haryana state and not to others. the benefit of reservation to scheduled castes and backward classes persons is already available only to those who are domiciles of haryana state under instructions referred to above.3. it is requested that these instructions may kindly be brought to the notice of all concerned and the receipt of the same may kindly be acknowledged.'relying on a clarification, made by the financial commissioner and secretary to government of haryana vide annexure r-3/3-a, also it was contended by the counsel for the appellant before the learned single judge that respondent no. 3 cannot claim benefit of reservation in promotion for himself on the basis of certificate issued by the other state for a caste which has been declared as reserved by the state of haryana. the relevant portion thereof reads thus :--'2. it is clarified that if a person belonging to the other state joins service as general category candidate in haryana and later on claims the benefit of reservation in promotion on the basis of certificate issued by the other states for a caste which has been declared as reserved by the state of haryana, such a person cannot claim benefit of reservation for himself on the basis of that certificate however, his children/dependents can claim the benefit of reservation being dependents of the haryana government employee.3. l. r. has also been c insulted.'he also relied on a letter from the chief secretary to government haryana, copy of which is annexed as p-8. the relevant portion of that letter reads thus :'subject:--reservation in promotion to the employees belong to reserved category of scheduled castes and backward classes.reference your memo. no. 10661/eii dated 18 12.91 on above noted subject.2. in this contention, it is stated that as per instructions issued by the social welfare department vide no. 6880.se-i-71-1051-52 dated 20.1.72 read with c. s. letter no. 22/67/81-csiii dated 15.7.85, the benefit of reservation at the time of initial recruitment as well as in the matter of promotions is admissible to the scheduled castes and backward class candidates belonging to the haryana state only and not to those belonging to a state other than haryana. it is also clarified that the scheduled caste and backward class persons belonging to a stale other than haryana after joining haryana govt. service cannot be considered as bona fide residents of haryana and hence cannot claim the benefit of reservation for himself. however, the children/dependents of such a person can be given the benefit of reservation since they become domiciles of haryana.'relying on the three letters, it was contended by the learned counsel for the appellant that the third respondent could not claim the benefit of reservation for promotion on the strength of annexure p-5. the learned single judge on consideration of all these documents came to the conclusion that the policy contained in communication dated 18th december, 1973, annexure p-5, has not been expressly superseded by any of the subsequent communications on which the appellant relied. consequently, the learned single judge allowed the writ petition and set aside the promotion of the appellant with a direction to consider the claim of respondent no. 3 for promotion against a vacancy reserved for scheduled caste w.e.f. 13.12.1991.4. mr. anand chhibbar, learned counsel for the respondent no. 3 streneously contended that the view taken by the learned single judge, that according to annexure p-5 respondent no. 3 was eligible for promotion against a vacancy reserved for scheduled caste, was correct and does not call for any interference.5. after giving careful consideration to the submissions made by the learned counsel for both the sides, we are of the view that is according to the instructions annexure p-5, the employees of scheduled caste/scheduled tribes belonging to other states and are in the service of haryanan government, shall also be considered as bodafide residents of haryana and they alongwith their children shall be given the benefit of reservation in government service. thus once they join service in haryana government, they would be considered as bona-fide residents of haryana and they alongwith their children shall get benefit of reservation in government service for all the time. when the above circular was issued, respondent 3 was already in the service of haryana government and as such the benefit of reservation is admissible to him in the matter of promotion. the said benefit has not been taken away by the three circulars issued later. in fact, annexure r-3/3, on which the learned counsel relies, related to the benefit of reservation to the ex servicemen and physically handicapped persons. the second paragraph thereof states that the benefit of reservation should be granted to only those ex-servicemen and physically handicapped persons who are domiciles of haryana state and not the others. the benefit of reservation to scheduled castes and backward class employees was already available to those who are domiciles of haryana state but by virtue of instructions annexure p-5 it was extended to the employees belonging to other states and who were/are serving already in service of haryana government in state should also be considered as bonafide residents of haryana, for the purpose of reservation in govt. service. nothing in annexure r-3/3 or r-3/3 effects claim of respondent no. 3 and other similarly situated persons.6. for the reasons given above, we answer the question set out in affirmative and dismiss the appeal. no costs.