Mewa Singh and ors. Vs. State of Punjab 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. - such applications in large number were submitted to increase its chances of success on the basis of money power. cartilisation and submission of large number of applications by the same group in different names, cannot be said to be bona-fide action of an individual or a group of individuals, but is an attempt to circumvent the provisions of the act and the rules, so as to increase its chances of success on the basis of money power alone. 12. in view of the above, we do not find any ground to interfere in the allotment of liquor vends for the year 2008-09. however, the state government shall be well advised to take suitable steps to achieve its declare objectives of not to create monopoly in allotment of liquor vends in the subsequent years.hemant gupta, j.1. this order shall dispose of c.w.p. nos. 4062, 4981 & 5288 of 2008, challenging allotment of liquor vends in the district of ludhiana-i for the year 2008-09. c.w.p. no. 4981 of 2008 is filed in public interest, whereas, c.w.p. nos. 4062 of 2008 & 5288 of 2008 are filed by the aggrieved contenders for the allotment of liquor vends. however, for facility of reference, the facts are taken from c.w.p. no. 5288 of 2009.2. challenge in the said writ petition is to the allotment of liquor vends in favour of respondent nos. 5 to 23, being illegal and violative of the excise policy for the year 2008-09, punjab excise act, 1914 (hereinafter called as 'the act') and punjab liquor licence rules, 1956 (hereinafter called as 'the rules').3. it is averred that as per the excise policy for the year 2008-09, the applicants willing to take liquor vends on licence were required to submit applications alongwith demand draft equivalent to 5% of the annual licence fee of such vend. the petitioners alleged to have submitted their applications for grant of licence in ludhiana-1, having code no. 30uc-41/205 alongwith requisite 5% of annual licence fee. it is explained that in ludhiana-1, there were 205 liquor vends and the said liquor vends are divided into 41 licensing units. thus, each prospective applicants were to attach 5% annual licence fee of the five vends with the application. it is alleged that the applications submitted by 'chadha group-private respondents, were entertained though these were without the requisite demand draft. in rule 36(6) of the rules, there is no provision for submitting applications alongwith 5% annual licence fee through cheque. it is further averred that if 30 applications were submitted by chadha group, 29 applications were with cheques, whereas only one application was with demand draft. the demand drafts were attached soon after the applicant was declared successful.4. in written statement filed on behalf of respondent nos. 5 to 23 by one manjit singh-respondent no. 16, the allegations of the petitioners were controverted and it was asserted that the respondents have filed the applications alongwith banker's cheque/demand drafts. it was explained that the banker's cheque is a pre-paid non-negotiable instrument 'on demand payable to a.e.t.c issued by the authorized signatories of the bank. it was, thus, alleged that the private banks have used different terminology, but the instrument does not change the true nature of the same. alongwith the reply, a cer-' tificate issued by hdfc bank has been annexed as annexure r-2, showing that all the banker's cheques attached with the applications were made on or before 10.3.2008 i.e. last date of filing of the application forms.5. learned counsel for the petitioners has argued that though the 5% of the annual licence fee can be said to have deposited through such banker's cheque, but since all these demand drafts/banker's cheques have been issued from one account in the name of m/s k. sons and associates, a-129, new friends colony, new delhi, standing with hdfc bank, new delhi, therefore, the submission of applications in such manner violates the excise policy, the act and the rules. such policy amounts to monopolization of vends in favour of one person/group on the strength of money power alone.6. on 11.9.2008, this court directed respondent nos. 5 to 23 to furnish the particulars of the bank and the account numbers out of which the bank drafts needed for filing of the applications were got prepared by each one of the respondents in connection with 41 licensing units in ludhiana, in view of the argument raised by learned counsel for the petitioners. the said respondents were also directed to explain whether any drafts were prepared by debit to the account of m/s k. sons and associates, and if so, whether the said respondents have any business or other relationship with the said concern. in pursuance of the said directions, additional affidavit dated 24.9.2008 has been filed. the said affidavit encloses a certificate issued by the hdfc bank (annexure r-5). it shows that total 16529 drafts were issued from the account of m/s k. sons and associates in the sum of rs. 3,15,79,00,000/-.7. based upon the abovesaid facts, learned counsel for the petitioners has vehemently argued that respondent nos. 5 to 23 are part of one group called chadha group. said group has filed numerous applications for 41 units in the names of their friends, relatives and employees etc. but the 5% annual licence fee, condition precedent for a valid application has come from one common source i.e. account of m/s k. sons and associates. the flow of funds and the manner of submission of applications show that monopoly is sought to be created by the said chadha group by circumventing the eligibility conditions. it is contended that chadha group played fraud with the entire process of allotment. the said authorities were bound to scrutinize the applications having received on such large number of applications accompanied by banker's cheque or demand draft from the same account. such applications in large number were submitted to increase its chances of success on the basis of money power. such conduct is not envisaged in the act and is found on the entire process of allotment of liquor vends.8. an additional affidavit has been filed by the petitioners on 14.5.2009 pointing out that applications were filed by chadha group for licensing units submitting earnest money of rs. 117.50 crores. as against the said applications, the petitioners have submitted 12 applications and submitted earnest money of rs. 2.22 crores. therefore, it is alleged that the provisions of the act and the rules have been violated as monopoly is created by violating the provisions of the act.9. a supplementary affidavit has been filed by excise and taxation commissioner, punjab, dated 19/20.5.2009, to the effect that the department officials deputed for scrutiny of the applications were only to see whether the applications were accompanied by the draft or any other banking instrument equivalent to the earnest money of that unit. there was no method available with the departmental officials to know as to how many drafts have been prepared from a single particular bank account. it is stated that the state has no intention of creating monopoly in any individual or group of individuals. the state had no methodology to prevent an action, if some individuals align themselves together but put individual applications separately. the state policy on liquor is primarily revenue oriented, therefore, it is not possible to prevent any person from applying for liquor licence as per his financial capacity. it has also been pointed out that the policy of allowing only one person to apply for a single unit/group has been discontinued and any individual can submit any number of applications as per excise policy for the subsequent years.10. we have heard learned counsel for the parties at length. the challenge in the writ petition is to the allotment of liquor vends for the year 2008-09. such year has come to end on 31.3.2009. therefore, after the expiry of the period of licence, no effective relief can be granted to the petitioners in the present case. but, we find that the state government is required take steps to prevent the competing parties to device ways and means to frustrate the stated object of the state that the monopoly is not intended to the created. cartilisation and submission of large number of applications by the same group in different names, cannot be said to be bona-fide action of an individual or a group of individuals, but is an attempt to circumvent the provisions of the act and the rules, so as to increase its chances of success on the basis of money power alone. however, keeping in view the fact that the period for which licence has come to end, we find that no effective relief can be granted to the petitioners in the present writ petition.11. mr. amol rattan singh, has produced notification dated 26.2.2009, amending sub rule 2 of rule 35 permitting a single person to file any number of applications for a particular unit or group of licencing unit. the said policy for the year 2009-10 is not the subject matter of challenge in the present writ petition. but prima facie without examining the legality of the said policy in detail, we are of the opinion that even the said amended clause may not help the state government to achieve the desired objection of not intending to create monopoly in favour of a individual or group of individuals. the only difference being that in earlier year, the names of different individuals were used, but in the year 2009-10, one individual can submit as many applications as he likes. therefore, submission of large number of applications by one person would infact lead to monopolization of the trade.12. in view of the above, we do not find any ground to interfere in the allotment of liquor vends for the year 2008-09. however, the state government shall be well advised to take suitable steps to achieve its declare objectives of not to create monopoly in allotment of liquor vends in the subsequent years.13. with the said observation, the writ petition stands dismissed.