Bhalla Medicos and ors. Vs. 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. - the petitioners declined to obtain licences from the municipal committee under section 121 on the ground that they were not carrying on the business in any offensive or dangerous material. 3. sub-section (1) of section 121 of the act specifies various articles of offensive and dangerous trades for which the persons carrying on business would be required to obtain licences from the municipal committee. sub-section (1) of section 121 of the act reads as under :121. regulation of offensive and dangerous trade :1) no place within the municipality shall be used for any of the following purposes :melting tallow, dressing raw hides, boiling bones, offal or blood, as a soap house, oil boiling house, dyeing house or tannery: as any other manufactury, engine-house, store-house or place of business from which offensive or unwholesome smell gases, noises or smoke arise; (2) *(3) *(4) *(5) *4. the mention of the various articles specified in the aforesaid sub-section (1) makes it clear that dangerously inflammable material, explosive articles, petroleum, oil and spirit have been included in the list of dangerous or offensive trades. medicines or drugs do not find any mention in the aforesaid sub-section (1). 5. any trade in medicines and drugs cannot be regarded as an offensive or dangerous trade unless it is shown that the persons carrying on such trade are also dealing in any inflammable material or explosives. these are said to be materials of offensive and dangerous nature. in that case, the petitioners carried on business in different commodities like drugs and medicines, general merchandise, petty karyana etc.n.k. agrawal, j.1. this is a petition by eight petitioners filed under articles 226 and 227 of the constitution for quashing the notification dated 19.7.1982, issued by the department of local government, punjab, whereby chemists and druggist were required to pay licence fee of rs. 300/- per annum to the municipal committee, nakodar, district jullundur. all the chemists and druggist were required to obtain licences with effect from 1.4.1982 under section 121 of the punjab municipal act, 1911 (for short 'the act').2. the petitioners are carrying on business in allopathic medicines and drugs at nakodar and are registered under the drugs and cosmetics act, 1940. they hold licences issued under the aforesaid act. the petitioners declined to obtain licences from the municipal committee under section 121 on the ground that they were not carrying on the business in any offensive or dangerous material.3. sub-section (1) of section 121 of the act specifies various articles of offensive and dangerous trades for which the persons carrying on business would be required to obtain licences from the municipal committee. sub-section (1) of section 121 of the act reads as under :-'121. regulation of offensive and dangerous trade :-1) no place within the municipality shall be used for any of the following purposes :-melting tallow, dressing raw hides, boiling bones, offal or blood, as a soap house, oil boiling house, dyeing house or tannery: as a brick-field, brick-kiln, charcoal-kiln, pottery or lime-kiln;as any other manufactury, engine-house, store-house or place of business from which offensive or unwholesome smell gases, noises or smoke arise; as a yard or depot for trade in unslated lime-hay, straw, thatching grass, wood, charcoal or coal, or other dangerously inflammable material;as a store-house for any explosive or for petroleum or any inflammable oil or spirit:except under a licence from the committee which shall be renewable annually:provided that no such licence shall be necessary in the case of any such premises which were used for any such purposes at the time that the punjab municipal act, 1911, came into force, and were registered under that act and in the case of brick-fields, which were used at the time that this act came into force, but the owner or occupier of the brick-fields so excepted shall register the same in a book to be kept by the committee for the purpose.(2) * * * * * * * * * *(3) * * * * * * * * * *(4) * * * * * * * * * *(5) * * * * * * * * * *4. the mention of the various articles specified in the aforesaid sub-section (1) makes it clear that dangerously inflammable material, explosive articles, petroleum, oil and spirit have been included in the list of dangerous or offensive trades. medicines or drugs do not find any mention in the aforesaid sub-section (1).5. any trade in medicines and drugs cannot be regarded as an offensive or dangerous trade unless it is shown that the persons carrying on such trade are also dealing in any inflammable material or explosives. it is thus obvious that allopathic medicines and drugs are not covered by sub-section (1) of section 121 of the act.6. the respondents have, however, pleaded that the petitioners were selling drugs and medicines, including liquid ammonia, spirit, phenyl etc. these are said to be materials of offensive and dangerous nature. the levy of licence fee on the chemist and druggists by notification dated 19.7.1982 has, therefore, been defended.7. a similar matter was examined by this court by a learned single judge of this court in malhotra drugs store and ors. v. the state of punjab and anr., 1984 rev.l.r. 67. the provisions of sub-section (1) of section-121 of the act were examined and it was held that the municipal committee had no authority to prescribe licence for carrying on the business of chemists and druggists under section 121 of the act.8. a similar question again happened to be examined by another learned single judge of this court in om parkash arora, proprietor parkash studio, barnala and ors. v. the state of punjab and ors., (1988-1)93 p.l.r. 357. the learned single judge referred to the earlier decision of this court in malhotra drugs store's case (supra) and took the same view that the notification issued under section 121 of the act was liable to be quashed to the extent it was made applicable to the petitioners therein. in that case, the petitioners carried on business in different commodities like drugs and medicines, general merchandise, petty karyana etc.9. since the business in medicines and drugs does not fall within the ambit and purview of sub-section (1) of section 121 of the act, the notification dated 19.7.1982 is liable to be quashed partly and to the extent it has been made applicable to chemists and druggists.10. in the result, the writ petition is allowed and the impugned notification dated 19.7.1982 is quashed to the extent it has been made applicable to the chemists and druggists specified in item at serial no. 1 in the schedule appended to the said notification. consequently, prosecution, if any launched against the petitioners, stands quashed. no order as to costs.