Shashi Kumar and ors. Vs. the Financial Commissioner and ors. - Court Judgment

Excerpt:
property - mutation - surplus lands - respondents were old tenants of original owner of suit lands - respondents purchased surplus suit lands of original owner - court sanctioned mutation in favour of respondents - appellants are relatives of original owner who filed application for cancelling mutation after death of original owner and claimed ownership of suit lands - application dismissed - hence, present appeal by appellants for cancelling mutation - held, surplus lands cannot remain in names of appellants as per laws of state and so suit land can not be in ownership of appellants - further appellants cannot be held owners of surplus land on basis of family compromise as contended by them - thus, appeal dismissed - 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.ranjit singh, j.1. this order will dispose of six civil writ petition nos. 8788 of 2009 (shashi kumar and ors. v. the financial commissioner, haryana, chandigarh and ors.), 8815, 8835, 9975 and 8921 of 2009 (shashi kumar v. the financial commissioner, haryana, chandigarh and ors.), 8824 of 2009 (shashi kumar and anr. v. the financial commissioner, haryana, chandigarh and ors.). facts are common and common question of law have been raised in these petitions.2. challenge in these writ petitions is to the order dated 19.3.2008 (annexure p-6) and order dated 10.2.2009 (annexure p-7). a mutation done in favour of the respondent-tenants on 24.11.1986 was undone by the collector on 17.12.2007, which order is set-aside by the commissioner vide annexure p-6 and the same is upheld by financial commissioner through order, annexure p-7.3. reference to unnecessary facts as contained in the writ petition may not be needed as the challenge in the present petitions is to orders, annexures p-6 and p-7, which relate to mutation in favour of the tenants. accordingly, a mention to facts, in brief, relevant to decide the challenge raised in the petitions is being made, leaving the unnecessary details disclosed in the petitions.4. the common facts in all these petitions, as would emerge from civil writ petition no. 8788 of 2009 are that om parkash (now deceased) was a big land owner, having lands in different villages. the surplus area case of said om parkash is in progress since long and had passed through various stages. large portion of land held by said om parkash was acquired by the government whereas some other portions were purchased by old tenants under section 18 of the punjab security of lands tenure act (for short, 'the tenures act'). om parkash died on 18.7.1992 during the pendency of his surplus proceedings. he was succeeded by his l.rs, which include the petitioners.5. during the pendency of the surplus proceedings, 6 applications were filed by the tenants (including surta, respondent no. 4) of village galoli under section 18 of the tenures act. these applications were allowed on 29.1.1969. mutation of this land came to be sanctioned in favour of the tenants (except respondent no. 4) on the basis of order dated 29.1.1969 vide which the purchase applications were allowed. the land owner made an application for cancellation of the said mutation on the ground that the order dated 29.1.1969 was set-aside by the collector on 23.5.1969. the collector cancelled the mutation on 21.9.1981 and mutated the land in the name of land owners. tenants then filed an appeal against the same, which was accepted by the collector on 12.4.1983 and the case was remanded to assistant collector to decide the cases of mutation afresh after hearing both the parties. on 15.7.1983, the assistant collector again decided the case of mutation in favour of the land owners. appeal against this order was dismissed by the collector on 31.10.1983. the petitioners claim that this order has become final as it was never challenged. this assertion of the petitioners does not seem to be borne out from the facts. it appears that the revision was filed against this order before the commissioner. on 6.2.1985, this revision was forwarded by the commissioner to the financial commissioner, haryana, with recommendation that the mutation in respect of the land in dispute be sanctioned in favour of the tenants or the government and not in favour of the land owners. the financial commissioner vide his order dated 20.5.1987 had accepted these recommendations. the response of the petitioners is that these orders relate to the land situated in village mandebri. the assistant collector iind grade, however, had sanctioned the mutation of land in favour of the tenants on 24.11.1986 on the basis of an order dated 29.1.1969 passed on the application filed by the tenants under section 18 of the tenures act. the plea is that order dated 29.1.1969 has already been set-aside on 23.5.1969. the petitioners would, thus, urge that this mutation was done ignoring the order dated 23.5.1969. they would, thus, term the order passed by the assistant collector to be arbitrary and the one which was passed at their back. the petitioners contend that when they learnt about this mutation, they filed an appeal on 30.1.1987, which was adjourned sine-die on 10.2.1988 till the decision of surplus area case of the petitioners. the petitioners have averred that an application for restoration of this appeal was accepted on 9.7.1992 but the order could not be dictated and the incumbent was transferred. however, there is no proof available on record in support of these averments. the matter has, thus, remained pending and in the meanwhile land owner, om parkash, died on 18.7.1992.6. the petitioners also relied upon a family settlement reached between the family. on the basis of this settlement, a civil suit was filed in the civil court, which was decreed on 10.8.1992. the family settlement was confirmed through decree as per which this land in villages galoli and mandebri came to the share of the present petitioners. this decree, however, is not placed on record.7. the petitioners thereafter approached the collector for restoration of their appeals, which had been adjourned sine-die. the collector restored the appeals vide his order dated 28.1.2003. the tenants then filed appeals before commissioner, ambala division, ambala, which were dismissed on 27.8.2003. the appeal was then heard and the collector set-aside the mutation dated 24.11.1986 vide his order dated 17.12.2007. the petitioners also filed a civil suit, seeking declaration to the effect that order dated 24.11.1986 was without jurisdiction and void. the necessity to file this suit, as per the petitioners, arose because the tenants, who were recorded as owners as per mutation dated 24.11.1986, started transferring the land in question through different modes. this suit was also decreed on 3.5.2007 and the mutations were held illegal, null and void.8. the mutation entries made on 24.11.1986, which were set-aside through order dated 17.12.2007, were challenged in an appeal. the appeal was allowed and the order dated 17.12.2007 was set-aside on 19.3.2008. copy of this order is annexed as an-nexure p-6. this order was challenged by the petitioner-land owners by filing a revision petition, which was dismissed by the financial commissioner on 10.2.2009 (annexure p-7). these orders are, thus, challenged through the present writ petition.9. it is seen that the litigation in the present case is pending since the year 1960. the respondent-tenants are purchasers of the land and are old tenants. their applications for purchase were allowed on 29.1.1969. though the petitioners claim that this order was set-aside but it seems that the case was only remanded to the assistant collector without any specific direction setting-aside the applications of sale which were allowed vide order dated 29.1.1969. the case appears to have been remanded to afford opportunity to the parties to pursue their case as the. value of the land in dispute had not been correctly assessed. in this background, it was observed that the assistant collector 1st grade should decide the case by taking full facts of the land in dispute as per the register of mutation and after conducting thorough enquiry regarding reservation and selection. these observations appear to have been made for assessing the value of the land correctly.10. further facts, which have been noticed in the impugned order are that this court in civil writ petition no. 873 of 1987 appears to have remanded the case to the financial commissioner. the financial commissioner, haryana, thereafter vide his order dated 16.9.1995 had set-aside the order dated 6.8.1979 passed by special collector and remanded the case back to special collector for deciding the same afresh. thereafter, the special collector vide his order dated 29.9.1997 declared 119 standard acres 14 units of land to be under the old tenants and further declared 30 standard acres area of land owners as permissible area. the remaining land was considered to be falling under the tenants permissible area. revision filed against this order passed by the special collector was dismissed on 12.10.1999. the financial commissioner dismissed the revision against the same on 24.3.2000 and thereafter the tenants filed a civil writ petition no. 10684 of 2001 in this court against the orders dated 29.9.1997, 12.10.1999 and 24.3.2000. this writ petition is still pending. thus, as on date 119 standard acres and 14 unit area of the land owners has been declared surplus. it is on this basis that the assistant collector iind grade had sanctioned the mutation dated 24.11.1986 in favour of the tenants. ignoring all these facts, the collector had allowed the appeals of the land owners through his order dated 17.12.2007 and had cancelled the mutation sanctioned by the assistant collector on 24.11.1986. while cancelling this mutation in favour of the tenants, the plea on behalf of the land owners wrongly put that order dated 31.10.1983 had become final was taken into consideration. this, as already noticed, had been challenged, leading to an order dated 20.5.1987.11. the petitioners had also relied upon a decree passed by the civil court on the basis of family compromise. the respondent tenants, however, would contend that the decree passed by the civil court on the basis of family partition was wrongly taken into consideration for cancelling the mutation sanctioned in favour of the tenants. plea is that the land owners can never become owners of the surplus land on the basis of the family compromise, which was the basis of the civil court decree. in fact, the tenants had challenged the decree of family settlement dated 10.8.1992. this suit, however, was dismissed on 8.5.2007.12. the whole basis of the arguments advanced by counsel for the petitioners is by ignoring the order declaring 119 standards acres and 14 units of land to be tenants permissible area. the writ petition against these orders, as already noticed, is pending before this court and this court has passed an order staying the dispossession from the land in dispute . the proceedings in the case titled om parkash etc. v. surta etc. relating to the mutation of the land in dispute were adjourned sine die by the collector on 10.2.1988 with the consent of the parties. the proceedings in regard to mutation no. 532 were stayed by assistant collector 1st grade vide his order dated 19.3.2002 till the decision of the civil writ petition. pending before this court. ignoring these facts, the collector allowed the mutation on the basis of the family compromise and the decree passed by the civil court by cancelling the mutation in favour of the tenants made on 24.11.1986. since the high court is yet to decide the matter regarding the permissible area and the tenants permissible area and the civil court has no jurisdiction to decide the matter regarding surplus, it was observed that the collector was not justified to restore the mutation cases and cancel the same without waiting for the decision on the above issues. the order of the collector was, thus, rightly found to be illegal and set-aside. there has been no order in favour of the landlords, which can entitle them to retain the ownership over die land. the land declared surplus even as per the law would vest in the state and can not remain in the names of land owners. the financial commissioner accordingly found that the case has rightly been adjudicated upon by the commissioner and, thus, did not find any justification to interfere with this order.13. the reference made by counsel for the petitioners to the observations made by this court in onkar and ors. v. birbal and ors. 1987 p.l.j. 155 in regard to the presumption in favour of the latter entries, which are rebuttable one and would stand rebutted if these are found to be unauthorisedly and mistakenly made without material to justify the change, apparently would not help him in view of the facts as noticed above. the counsel then referred to jag/it singh v. state election commission punjab and ors. : (2003-2) 134 p.l.r. 396 to urge that civil court decree even if passed without jurisdiction was required to be set-aside before it could be ignored would not apparently apply in this case as this was not the only basis for which the commissioner and financial commissioner have interfered with the order passed by the collector. it could not be disputed by the counsel for the petitioners that the civil court did not have the jurisdiction to decide the case of mutation entries.accordingly, no case for interference in the impugned orders is made out.the writ petitions are, thus, dismissed in limine.