Smt. Raj Rani Vs. the State of Punjab 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.g.c. garg, j.1. the amritsar improvement trust framed a development scheme known as the truck stand development scheme, under section 24 read with section 28 of the punjab town improvement act, 1922 (for short the act) proposing to acquire about 135 acres of land. notice under section 36 of the act was published on may 11, 1974. the scheme was sanctioned by the state government under section 41 of the act and notified under section 42 of the act in the punjab government gazette dated may 27, 1977, notification under section 42 of the act has the same effect as a notification under section 6 of the land acquisition act. award in respect of the land covered by the scheme was announced on august 3, 1978 including the land under the petrol pump i.e the land in dispute in this petition. compensation for the superstructures was, however not announced as evaluation thereof had not been received by the land acquisition collector. a supplementary award dated october 30, 1986, determining compensation for the superstructures standing on the land in question was made. this supplementary award was made part and parcel of the original award dated august 3, 1978.2. compensation assessed for the land involved in this petition as also for the superstructures standing thereon, has either not been paid or received by the petitioner though notices under section 12(2) of the land acquisition act were issued requiring her to receive the compensation as assessed by the supplementary award.3. this writ petition has been filed challenging the acquisition proceedings on two grounds, namely, (i) the supplementary award has been made beyond a period of two years of coming into force the provisions of section 11a of the land acquisition act, as inserted by central act 68 of 1984 and thereby the entire acquisition proceedings have lapsed and, (ii) two awards, one fixing the value of the land and second fixing the value of superstructures, could not be made.4. it may be stated that the land and the building standing thereon constitute one unit. the value of the entire unit is required to be determined with all its advantages and potentialities in terms of section 23 of the land acquisition act. a necessary consequence thereof would be that only one award has to be rendered for the unit in the present case, the award in respect of land was made by the land acquisition collector on august 3, 1978 and the supplementary award for the superstructures standing thereon was made on october 30, 1986. this matter is not res integra. a division bench of this court in sharan pal singh and ors. v. state of punjab, (1991-1) 99 p. l. r. 61. observed as under : -'in the light of the authoritative pronouncement, there is no escape from the conclusion that the land, buildings standing there on and the standing crops and trees on the land constitute one unit, and the value of the entire unit has to be determined with all its advantages and potentialities. necessary consequence will be that only one award has to be rendered for this unit.section 11a of the act makes it mandatory for the land acquisition collector to make an award under section 11 ibid within a period of two years from the date of publication of the declaration under section 6 of the ct, and if no award is made within that period, entire proceedings for the acquisition of land shall lapse in the instant case, notification under section 4 of the act was published in the punjab government gazette dated june 1, 1982, followed by a notification under section 6 dated august 17, 1983 the land acquisition collector made the award on march 25, 1985, relating to the land and not for the superstructures and trees standing thereon. the award renderd by the land acquisition collector was not the one envisaged under section 11 of the act. the same envisages the award for the unit, viz the land, buildings and superstructures and standing crops and trees thereon. the acquisition proceedings would lapse insofar as the award relates to that portion of the acquired land on which the superstructures and trees were standing on the date the award had been made.'thus, the ir-resistible conclusion is that the acquisition proceedings insofar as these relate to the land in question are vitiated, for the award rendered by the land acquisition collector is not the one envisaged by section 11 of the act. even otherwise, the award with respect to superstructures standing on the land in dispute measuring 977.7/9 square yards comprising of khasra no. 424 involved in the present petition was not made within a period of two years as contemplated by section 11a of the land acquisition act. section 11a, provides that in a case where the declaration has been published before the commencement of the land acquisition (amendment) act 68 of 1984, the award shall be made within a period of two years from such commencement. the land acquisition (amendment) act 68 of 1984 came into effect from september 24, 1984. the award was, thus, required to be made on or before september 24, 1986 as the declaration in this case had been published before september 24, 1984 the date of commencement of land acquisition (amendment) act 68 of 1984. the award in this case, as already noticed, has admittedly been made on october 30, 1986. necessary consequence therefore, is that acquisition proceedings insofar these relate to land in dispute i. e. land measuring 977.7/9 sq. yards comprising of khasra no. 424 are vitiated.6. for the reasons stated above, the writ petition succeeds qua the petitioner only. accordingly, the acquisition proceedings would lapse with regard to land measuring 977.7/9 sq. yards comprising of khasra no. 424 in the revenue estate of village tung wala urban, tehsil and district amritsar, presently under the petrol pump and for which award was not rendered in terms of section 11a of the land acquisition act. no order as to costs.