Jaimal and ors. Vs. Haryana State 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. - it was observed by the court that the oral as well as documentary evidence led by the claimants did not prove a safe criteria for determining the market value of the acquired land on the date of the preliminary notification. 4. still not satisfied with the amount of compensation awarded by the learned additional district judge the land owners filed regular first appeals in this court for further enhancement in the amount of compensation. all these appeals came up for hearing together before the learned single judge who after examining the evidence oral as well as documentary led by the parties came to a conclusion that there was no sufficient material on the record to justify any further increase in the amount of compensation awarded by the court below. they have, however, placed on record letter exhibit pw 16/a by which the deputy commissioner of the district had recommended the award of compensation to the land owners in regard to the land in question.n.k. sodhi, j.1. this bunch of 49 letters patent appeals bearing numbers 1156 to 1166 of 1991, 312 to 334, 424 to 426 and 1236 to 1247 of 1992 filed by the land owners for enhancement of compensation awarded by the learned single judge can be conveniently disposed of by a common judgments as all these appeals arise out of the same acquisition proceedings and identical questions of law and fact are involved in them. letters patent appeal 1156 of 1991 being the main appeal on the basis of which others were admitted, facts have been taken from this case.2. land measuring 12131 kanals and 18 marlas in village badho rangran tehsil and district hissar was sought to be acquired by the state of haryana for a public purpose viz. extension of hisar cantonment. a preliminary notification under section 4 of the land acquisition act, 1894 which was later followed by a declaration under section 6 of the act on april 12, 1985 and the aforesaid land mentioned therein stood acquired. land acquisition collector as per his award of september 17, 1986 awarded a sum of rs. 20,000/- per acre as compensation for nehri/chahi land, rs. 12,000/- per acre for tal/barani land and rs. 8000/- per acre for tibba/banjar aadim/gair mumkin land in addition to the compulsory acquisition charges and interest at the statutory rates.3. feeling dissatisfied with the amount of compensation awarded by the collector the land owners had references made by under section 18 of the act all of which were heard and disposed of by the learned additional district judge, hissar. the claimants who claimed higher amount of compensation before the court had placed reliance on five sale deeds the details of which are as under:-sr. exhibit no. & date of area of land sale approximate no sale deed sold price rate per acre.k. m.1. pz/3 2033/2.7.84 20 03 rs. 35000/- rs. 14000/-2. pz/4 1892/27.6.84 -do- --do-- --do--3. pz/5 3416/29.9.86 10 04 rs. 45000/- rs. 34000/-4. pz/6 4019/20.1.83 8 00 rs. 13500/- rs. 13500/-5. pz/8 4026/27.11.84 11 00 rs. 42000/- rs. 30000/-the learned additional district judge discarded the aforesaid instances of sale transactions and instead placed reliance on a letter exhibit pw16/a written by the deputy commissioner hissar recommending the rates of different categories of land to the land acquisition collector and it was on the basis of those recommendations that he enhanced the compensation as per his judgment and order dated february 18, 1989 to a sum of rs. 25000/-per acre for the land which was nehri/chahi, rs. 20,000/- per acre for tall barani land and rs. 12000 per acre per land which was tibba/banjar. it was observed by the court that the oral as well as documentary evidence led by the claimants did not prove a safe criteria for determining the market value of the acquired land on the date of the preliminary notification.4. still not satisfied with the amount of compensation awarded by the learned additional district judge the land owners filed regular first appeals in this court for further enhancement in the amount of compensation. the state of haryana also filed regular first appeals challenging the awarded to the claimants. all these appeals came up for hearing together before the learned single judge who after examining the evidence oral as well as documentary led by the parties came to a conclusion that there was no sufficient material on the record to justify any further increase in the amount of compensation awarded by the court below. the contention that the acquired land had the potential for development into a residential area was also negatived because of lack of evidence in this regard. the learned judge, however, found that the land mentioned in chakbandi forms 'a' came under 'command area' which was entitled to receive water and therefore, the same deserved to be evaluated at the nehri rates. after perusing the chakbandi forms 'a' exhibits p1 to p13 and p26 to p32 the learned judge directed that the land of the claimants mentioned therein which had been acquired would be assessed at the rate of rs. 25000/- per acre the rate which was fixed for chahi/nehri land. the appeals filed by the claimants were accordingly partly allowed and the appeals filed by the state were dismissed. the land owners were held entitled to proportionate costs as also to the grant of statutory benefits of the amended provisions of section 23(1a), 23(2) and 28 of the act. it is this order of the learned judge which has been impugned before us in the present appeals. it would be relevant to mention here that union of india also preferred appeals against the order of the learned single judge claiming reduction in the amount of compensation determined by him but the same were dismissed in limine.5. we have heard shri s.d. bansal, advocate on behalf of the claimants, shri s.k. pipat, learned senior standing counsel for the union of india and shri h.l. sibal, learned advocate general for the state of haryana. they have taken us through the judgment under appeal and have also referred to the relevant evidence on which they placed reliance.6. it may be mentioned at the outset that in the present set of cases the land owners have not produced any material on the record which would warrant any further enhancement of compensation as awarded by the land acquisition collector. they have, however, placed on record letter exhibit pw 16/a by which the deputy commissioner of the district had recommended the award of compensation to the land owners in regard to the land in question. the learned additional district judge relying on this document enhanced the amount of compensation which was determined by the land acquisition collector. even a site plan showing the location of the acquired land vis-a-vis the city of hisar or other developed areas around it including the existing hisar cantonment has not been produced. shri bansal appearing for the claimants relied on the sale transactions on which the land owners had relied before the land acquisition court. exhibit pz/6 is the only relevant sale transaction which took place on january 20,1983 in regard to an area of 8 kanals which was sold for a sum of rs. 13,500/-. this is the only sale transaction prior to the date of the preliminary notification. all other sale instances relied upon are subsequent to the relevant date and cannot be taken into consideration for determining the market value of the land in question. if one were to accept the sale instances produced by the claimants the compensation awarded by the learned single judge and the land acquisition court would have to reduce. in our opinion the learned single judge as also the land acquisition court were right in discarding the instances of sale produced by the land owners. the oral evidence led by the claimants is equally insufficient to prove the market value of the acquired land. some of the witnesses who appeared on their behalf have stated that the value of the nehri land in village badho rangran was rs. 80000/- per acre and that of tibba land was rs. 70000/- per acre. the statements of these witnesses cannot be accepted at their face value for they have not given any rational basis for holding that the value of the land was what they stated. as a matter of fact the oral testimony of the witnesses does not find any corroboration from any sale transaction. we are of the opinion that the learned single judge has already been rather liberal in awarding the amount of compensation to the land owners and further modifying the award of the land acquisition court by bringing in more land within the category of nehri/chahi land for which a higher amount of compensation has been fixed. in the circumstances, there is no scope whatsoever for any further enhancement in the compensation already awarded.7. in the result, we uphold the order of the learned single judge and dismiss the appeals. there is no order as to costs in this set of appeals.