Parshotam Lal Gupta and anr. Vs. Municipal Committee 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. - 200/- per month, vide order dated 27.6.1983. another appeal was filed by the petitioners, which, however, came to be dismissed, vide order dated 15.9.1983. 4. the petitioners'ss case precisely rests on the plea that the annual letting value of the shop in question could not be assessed at an amount which should be more than the fair rent under the east punjab urban rent restriction act. 11. keeping in view the provisions of sub-clause (b) of clause (1) of section 3 of the punjab municipal act, 1911, as applicable to the assessment year 1982-83 and in the light of the decisions of this court as well as those of the supreme court, referred to above, orders of the municipal committee, ferozepur city, and of the additional deputy commissioner ferozepur, are quashed and the municipal committee, ferozepur city (respondent no.n.k. agrawal, j.1. this is a petition under articles 226/227'of the constitution for quashing the order dated 27.6.1983 passed by the municipal committee ferozpur city and the appellate order dated 15.9.1983 passed by the additional deputy commissioner, ferozepur, and for the, refund of rs. 593/recovered from the petitioner as house tax.2. petitioner no.l is a partner of the firm m/s. rameshwar dass madan lal, main bazar, ferozepur city. the partnership-firm has been arrayed in the present petition as petitioner no. 2. the petitioners own a shop (no. cs-1/97) in the main bazar of the city. annual rental value of the shop was fixed for the year 1973-74 by the municipal committee, ferozepur city at rs. 90/- per month and rs. 1080/- per annum. the municipal committee sent a notice to the petitioners in the month of february, 1982, proposing the annual rental value of the shop to be fixed at rs. 3780/- for the year 1982-83 (taking the monthly rent at rs. 350/-). the petitioners filed objections in response to that notice. the objections were considered by the house tax sub committee of the municipal committee and, vide order 26.3.1982, rent was determined at rs. 200/- per month and annual rental value was determined accordingly. the petitioners filed an appeal before the deputy commissioner against the order passed by the municipal committee, pleading therein that rental value may be fixed on the basis of the fair rent in accordance with the provisions of the easweunjab urban rent restriction act.3. in appeal, the case was remanded to the municipal committee for determining the house tax afresh on the ground that the executive officer was not present in the sub committee deciding the case of the petitioners. the house tax sub committee, however, again determined the annual rental value at rs. 200/- per month, vide order dated 27.6.1983. another appeal was filed by the petitioners, which, however, came to be dismissed, vide order dated 15.9.1983.4. the petitioners'ss case precisely rests on the plea that the annual letting value of the shop in question could not be assessed at an amount which should be more than the fair rent under the east punjab urban rent restriction act. it has been pointed out that the shop in' question was an old structure and in existence since 1937. it was in self-occupation of the petitioners. it is further explained that no additions, alterations or improvements were effected in the shop. the petitioners have, therefore, put forward the plea that there was no justification to increase the annual letting value of the shop in question in the absence of any material on the record showing any addition or alteration in the ship and also because the annual rental value cannot be fixed on the basis of the present market value.'annual value' has been defined in clause (1) of section 3 of the punjab municipal act, 1911. sub-clause (b) of the clause (1) is relevant for the purposes of the question arising in the present petition and the said sub-clause (b) read, prior to its amendment in the year 1994, as under:'(1) 'annual value' means -(a) *****(b) in the case of any house or building, the gross annual rent at which such house or building, together with its appurtenances and any furniture that may be let for use or enjoyment therewith, may reasonably be expected to let from year to year subject to the following deductions:(i) such deduction not exceeding 20 per cent of the gross annual rent as the committee in each particular case may consider a reasonable allowance on account of the furniture let therewith;(ii) a deduction of 10 per cent for the cost of repairs and for all other expenses necessary to maintain the building in a state to command such gross annual rent. the deduction under sub-clause shall be calculated on the balance of the gross annual rent after the deduction (if any) under sub-clause (i);(iii) where land is let with a building, such deduction, not exceeding 20 per cent of the gross annual rent, as the committee in each particular case may consider reasonable on account of the actual expenditure, if any, annually incurred by the owner on the upkeep of the land in a state to command such gross annual rent;explanation i. - for the purposes of this clause, it is immaterial whether the house or building, and the furniture and the land let for use or enjoyment therewith, are let by the same contract or by different contracts and if by different contracts, whether such contracts are made simultaneously or at different times.explanation ii. - the terms 'gross annual rent' shall not include any tax payable by the owner iri respect of which the owner and the tenant have agreed that it shall be paid by the tenant.'5. it would thus appear that, in the case of any house or building, gross annual rent is to be determined on the amount at which it may reasonably be expected to let from year to year subject to certain deductions. it has been settled by a catena of decisions that it is the fair rent which is the rent reasonably expected at a place where a rent control law is in force and restricts the amount of rent to fair rent.6. a similar matter came to be examined by this court in punjab concast steels ltd., ludhiana v. the municipal corporation, ludhiana, (1985-1)97 p.l.r. 757, and it was held that the principle of fair rent has to be followed for arriving at the annual letting value if the property was located in an area subject to rent control law.7. in banarsi dass mahajan v. state of punjab and anr., (1990-1)97 p.l.r.1 (f.b.) the question about the applicability of the fair rent was again upheld by a full bench of this court.8. in letters patent appeal no. 190 of 1983 (jagjit cotton textile mills ltd., phagwara, through mr. s.g. viyas, chief accountant v. the state of punjab and ors.), (1991-1)99 p.l.r. 117 decided by a division bench of this court on 13.9.1990, the question was examined in detail and it was held that the annual rental value has to be fixed in accordance with the principles laid down in the rent control law for the purposes of fair rent.9. in corporation of calcutta v. padma devi,4 air 1962 supreme court 151, and in devan daulat rai kapoor etc. v. new delhi municipal committee, and anr., a.i.r. 1980 supreme court 541, the question about the applicability of fair rent for the purposes of determining the annual rental value has been finally settled in view of the rent control law being in force in the area where the property is situated.10. in dr. balbir singh and ors. v. m.c.d.,6 a.i.r. 1985 supreme court 339, the view, that it is the fair rent which shall be adopted for the purposes of determining the annual rental value of a property which is subject to the rent control law, has been reiterated.11. keeping in view the provisions of sub-clause (b) of clause (1) of section 3 of the punjab municipal act, 1911, as applicable to the assessment year 1982-83 and in the light of the decisions of this court as well as those of the supreme court, referred to above, orders of the municipal committee, ferozepur city, and of the additional deputy commissioner ferozepur, are quashed and the municipal committee, ferozepur city (respondent no.l), is directed to redetermine the annual rental value of the property in question on the basis of the fair rent as was determinable under the east punjab urban rent restriction act. the house-tax which shall be determined afresh in pursuance of the aforesaid directions, shall be refunded by the municipal committee to the petitioners. no order as to costs.