Surjit Singh and ors. Vs. the State of Haryana 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. - the rights of the parties cannot be torched by passing orders like annexure p1, that too without affording reasonable opportunity of hearing.b. rai, j.1. this petition has been filed under articles 226/227 of the constitution of india for quashment of annexure p1 and also subsequent proceedings for entering the mutation in favour of gram panchayat, respondent no. 3.2. brief facts are that there is land measuring 273 kanals in village bargat, district kurukshetra. in the column of ownership of jamabandi for the year 1984-85, the petitioners and other right-holders of the village are recorded as owners in possession of this land since consolidation proceedings took place in the village. before the present petitioners, their ancestors were in cultivating possession of this land and it was not utilised as shamilat deh. a decree for declaration regarding partition between the petitioners was passed by a civil court on november 18,1983. that decree was not challenged by the gram panchayat at any time. now after about thirty years of finalisation of consolidation scheme, respondent no. 2 has written a letter, dated august 3, 1990 annexure p1 to the tehsildar, thanesar to record mutation in favour of gram panchayat instead of recording it in the names of the petitioners and other right-holders mentioned in the jamabandi for the year 1984-85. it is further alleged that on the basis of annexure p1, the tehsildar has initiated proceedings for the change of mutation in the name of gram panchayat. it is further pleaded that earlier also, letters exhibits p2 and p4 were written by the deputy commissioner to the tehsildar for change of mutation in the name of gram panchayat. these letters were challenged by filing civil writ petitions 2590 of 1981 and 6229 of 1989. on the statement having been made by the state counsel, the orders impugned were withdrawn. consequently, those writ petitions were dismissed as infructuous vide annexures p3 and p5, respectively. it is also pleaded that ownership as recorded in the revenue record was sought to be taken away by the state by inserting sections 13-a and 13-b in the punjab village common lands (regulation) haryana amendment act, 1961 by punjab village common lands (regulation) haryana amendment act, 1974. the amending act was challenged by filing various writ petitions and section 13-a being ultra vires the constitution, was struck down. it was also alleged that no notice whatsoever was served on the petitioners and they were not summoned at any time before writing the letter, exhibit p1. it is also pleaded that the order of the deputy commissioner on the face of it is wholly illegal and without jurisdiction. there cannot be any change in the revenue record and dispossession of the petitioners without there being any adjudication as required under section 13-a of the act of 1981, as amended by haryana act no. 2 of 1981. after the adjudication by the assistant collector, the petitioners have a right of appeal to the collector and a revision before the commissioner. therefore, the deputy commissioner has acted illegally in passing the order, annexure p1, which deserves to be quashed.3. on notice, the claim of the petitioners was resisted by the gram panchayat and respondents 1 and 2 by filing separate written statements. the gram panchayat raised preliminary objection that the impugned order, annexure p1, passed by respondent no. 2 cannot be challenged under article 226/227 of the constitution of india, being purely an administrative order directing the tehsildar to initiate mutation proceedings in order to give effect to the operation of law in revenue records. the government vide d.c. letter no. 6136-r-iv-89/27442, annexure r3/1, directed all the deputy commissioners in the state to initiate mutation proceedings in favour of gram panchayat regarding the land of panna/thola shamilat deh. they pleaded that even otherwise the tehsildar is duty bound to record mutation to give effect to the mandate of law. mutation order would be passed by him in village gathering after hearing all the interested parties and the petitioners would be at liberty to agitate their case before him. even otherwise, mutation does not confer any ownership right. as such when no right is involved, writ petition is not maintainable. it was further pleaded that prior to consolidation proceedings in 1954-55, there were two charands (one measuring 128 kanals 15 marias and the other measuring 158 kanals 12 marias) in village bargat since long. the total area under shamilat deh charands was, thus, 287 kanals 7 marias. the present dispute rates to land measuring 273 kanals, the break-up of which is as under :sl.no. area nature of land1. 158k-12m gair mumkin charand2. 38k-19m gair mumkin abadi bagrat shahpurian.3. 75k-9m gair mumkin saraswati rasta, kohlu,chaupal, khel kud, women latrines,baisak for cattle, pond (sic)total 237k-0mthe said area of 273 kanals is in khewat no. 139 and khata no. 224. jamabandi for the year 1954-55 is the first jamabandi prepared soon after the consolidation. the gram panchayat also relied upon wajib-ul-arz of the village, true translation of which is annexure r3/2, according to which shamilat deh consisting of charands, rastas, pond, baisak for cattle, chaupal, mandir etc. were unfit for cultivation at the time of consolidation. therefore the question of scheme of partition for this shamilat deh did not arise at the time of consolidation. an area of 287 kanals 7 marias including 158 kanals 12 marias under shamilat patti shahpurian, was left out, during consolidation, as it is, as shamilat deh charand wherein proprietors and non-proprietors had equal rights. in jamabandis for the years 1963-64 and 1969-70, the entries are the same as reflected in the jamabandi for the year 1954-55 and 1984-85. in the latest jamabandi for the year 1984-85, the entry in cultivation column is 'khud kast maqbuza malkan' qua all khasra numbers of charand except khasra number 809(19k-3m) and khasra no. 945(2k-8m), where the nature of land is still described as charand. shamilat deh charand existed before consolidation which took place in 1954 and the area remained as shamilat deh charand even after consolidation. the suit land squarely fell within the definition of 'shamilat deh' given in section 2(g) of the punjab village common lands (regulation) act, 1961 and it vested in the gram panchayat under section 4 of this act: the land in dispute being shamilat deh vested in the gram panchayat by operation of law and the tehsildar was bound to give effect to the operation of law by mutating the land in favour of gram panchayat in the revenue records.4. the same pleas were taken by respondent 1 and 2.5. i have heard the learned counsel for the parties and have carefully gone through the pleadings and the record. it is not disputed that consolidation operations took place in village bargat in the year 1954-55 and the controversy between the parties revolves around the land mentioned therein. the sanction of mutation in respect of land measuring 273 kanals, according to the learned counsel for the petitioners, belongs to them and other right-holders mentioned in the jamabandi and they are in cultivating possession of the same. even before the consolidation, the ancestors of the petitioners and other right-holders were in cultivating possession of that land as owners. even in the jamabandi prepared after the consolidation, they are recorded to be the owners and in cultivating possession and, as such, is not a shamilat deh.6. on the other hand, case of the respondents is that even prior to the consolidation, the land in question was described as gair mumkin charand, gair mumkin abadi, bargat, shahpurian, gair mumkin saraswati, rasta, kohlu, chaupal, khel kud, women latrines, basak for cattle and pond etc., as such, a shamilat deh which vests in the gram panchayat. same is the position even after the consolidation. thus, the precise question that arises for determination is whether the land mentioned in jamabandi for the year 1954-55 is shamilat deh, or not. 'shamilat deh' has been defined in section 2(g) of the punjab village common lands (regulation) act, 1961 as amended by haryana act no. 9 of 1992 and haryana act no. 18 of 1925. the jurisdiction of civil court having been specifically barred under section 13, only collector has the jurisdiction to determine the question whether land or other immovable property is or is not shamilat deh; any land or other immovable property or any right, title or interest in such land or other immovable property vests or does not vest in a panchayat under the punjab village common lands (regulation) act, 1961; or in respect of any matter which any revenue court, officer or authority is empowered by or under this act to determine; or to question the legality of any action taken or matter decided by any revenue court, officer or authority empowered to do so under the act. the rights of the parties cannot be torched by passing orders like annexure p1, that too without affording reasonable opportunity of hearing. the deputy commissioner has no jurisdiction to pass such orders when competent authorities have no jurisdiction to pass orders prejudicial to the rights of the parties without giving opportunity to put forth and plead their case. the order annexure p1 smacks of arbitrariness. it suffers from the vice of unfairness in the eye of law. therefore annexure p-l deserves to be quashed.7. for the reasons recorded above, allowing the writ petition, annexure p-l is quashed. the authorities shall, however, be at liberty to proceed in accordance with law and procedure.