Bansal and Sons Contractors Vs. 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. - gupta, superintending engineer, as arbitrator and the arbitrator entered upon the reference and made the award, copy of which was endorsed to both the parties, vide endorsement no.a.s. nehra, j.1. this revision petition has been referred to division bench to determine the question :-'whether an appeal lies against an order refusing to set aside the award and passing a decree in terms of the award ?'2. briefly stated, the facts of this revision petition are that the petitioner filed an application under section 14 read with section 17 of the arbitration act, 1940 (for short, the act) praying for making the award dated 18-7-1986 a rule of the court. the subordinate judge, karnal, vide order dated 12 3-1986, appointed shri d. p. gupta, superintending engineer, as arbitrator and the arbitrator entered upon the reference and made the award, copy of which was endorsed to both the parties, vide endorsement no. 5672 dated 19-7-1986. in the application filed by the petitioner, it was prayed that notice be given to the arbitrator for filing the original award alongwith the proceedings and that the award be made a rule of the court and a decree be passed in accordance with the award.3. notice of this application was given to the respondents. respondent no. 3 caused the production of the original award and the arbitration proceedings, in the court. respondents nos. 1 and 2 filed objections to the award. the objectors' claim is as under :-tenders for the work of construction of new buildings for mahila ashram, karnal, were invited by the state of haryana through the executive engineer, provincial division no. 1, p. w. d. (b. & r.), karnal in response to the said n. i.t., the applicant submitted its tender. certain dispute arose regarding that work. the respondent filed an application under section 20 of the arbitration act in the court for appointment of an arbitrator. on the basis of the said application, vide order dated 22-2-1986, shri d. p. gupta respondent was appointed as arbitrator. the parties appeared before him and presented their claim and defence written statements. the said arbitrator, vide his award dated 18-7-1986, awarded an amount of rs. 64,980/- in favour of the applicant. the objectors claimed that the award made: by the arbitrator does not deserve to be made the rule of the court and it deserves to be set aside on the ground that the learned arbitrator has misconducted himself and the proceedings that the award has been improperly procured and is otherwise invalid ; and that the arbitrator in his award did not give the details of the amount awarded and the award is not self contained. it was also claimed that the award has been made illegally and without jurisdiction as it was against the provisions, terms and conditions of the n.i.t. and the tenders submitted by the contractor. it was claimed that, in pursuance of the tender submitted by the applicant, the executive engineer, vide his letter dated 18-5-1981, allotted the work to the applicant and the contract between the parties stood concluded. thereafter, the applicant, made a representation dated 25-5-1981. his representation was duly considered and the conditions of the work were modified and a letter dated 11-7-1981 was issued to the applicant-contractor. in this letter, the applicant was requested to start the work and to ensure its completion within the contractual period, the applicant did not start the work despite several requests. vide letter dated 11-8 1981, the executive engineer requested the applicant to start the work by 14-8-1981, failing which his earnest money would be forfeited. the contractor did not start the work again on the receipt of the said letter and the amount of rs. 34,200/-, deposited by the applicant as earnest money, was forfeited. it is claimed that the forfeiture of the earnest money was in accordance with law and the terms and conditions of the tender and that the learned , arbitrator was not legally justified in awarding the amount of earnest money and the award is against the facts and without jurisdiction. the award was also claimed to be a nullity. it was also claimed that, in this award, the learned arbitrator has allowed the claim which was time barred; that the amount forfeited was rs. 34,200/- while the arbitrator awarded a sum of rs. 64,980/- ; and that the award is illegal and deserves to be set aside.4. on the pleadings of the parties, the following issues were framed :-1. whether the award, in question, is liable to be set aside, as alleged ?2 whether the application is not properly stamped ?3. whether the objection-petition is barred by time ?4. relief5. issue no. i was decided against the respondents. issues nos. 2 and 3 were not pressed.6. the objections filed by the respondents were dismissed. the award dated 18-7-1986, awarding a sum of rs. 64,980/- in favour of the petitioner was made a rule of the court by the senior sub judge, karnal. on 21.5.1988.7. aggrieved by the judgment and decree passed by the senior sub-judge, karnal, an appeal was filed by respondents nos. 1 and, 2 before the district judge, karnal, which was allowed and the judgment and decree passed by the trial court was set aside. the objection petition filed by respondents nos. 1 and 2 under section 30 of the act was allowed and the case was remitted back to the arbitrator to decide the subject-matter afresh.8. the learned counsel for respondents nos. 1 and 2 submitted before the district judge, karnal, that the claim filed by the petitioner before the arbitrator was barred by limitation. on behalf of the petitioner, it was argued that the point of limitation cannot be taken up before the appellate court, because it was not raised before the arbitrator. the appellate court held that section 3 of the limitation act debars the arbitrator from entertaining any such claim and that, since it is a legal point, it can be taken up in an objection petition, under section 30 of the act though it was never urged before the arbitrator.9. the learned counsel for the petitioner argued before the learned single judge that no appeal was maintainable before the appellate court against the order refusing to set aside an award and making it a rule of the court and passing a decree in terms of the award. in support of his argument, the learned counsel for the petitioner relied upon union of india v. m/s. shibboo mal and sons, (1989-1) 95 p. l.r. 264.10. the learned single judge has mentioned in the reference order that the view taken in m/s. shibboo mal and sons case (supra) runs contrary to the statutory provisions of section 39 of the act.11. after hearing the learned counsel for the parties, we are of the opinion that the view taken in m/s. shibboo mai's case (supra) does not run contrary to the statutory provisions of section 39 of the act the facts which are mentioned in paragraphs 2 and 3, of the judgment were not brought to the notice of the learned single judge by the learned counsel for the petitioner. paragraphs 2 and 3 of the judgment in m/s. shibboo mal's case (supra) read :-'the facts briefly are that a dispute ,arose between respondent no. 1 and the appellant in respect of contract agreement g e j k 37/7 -77, for providing married accommodation for jcos/havs/o at udhampur in terms of the agreement, the dispute was referred for adjudication to the sole arbitrator lt. k. b. sethi. the arbitrator gave the award and sent a copy of the same to respondent no. 1, respondent no. 1 moved a petition before the subordinate judge, chandigarh, for a direction to the arbitrator to file the award in the court, and after the award is filed the same may be made the rule of the court and a decree in terms thereof may be passed.the appellants filed reply, to the application. they did not dispute the correctness of the allegations made in the petition.the only dispute raised was that, since the work under the contract was executed at udhampur, the subordinate judge at chandigarh has no jurisdiction to entertain the application.'the union of india in that case did not dispute the correctness of the allegations made in the petition filed by m/s. shibboo mal and sons. the only dispute raised by the union of india in that case was that, since the work under the contract was executed at udhampur, the subordinate judge at chandigarh had no jurisdiction to entertain the application.12. under section 14 of the act, the arbitrator has to file the award in court when directed and, when the award is filed, notice has to be sent to the parties of the filing of the award. after the provisions of section 14 of the act have been complied with and the court finds no cause to remit back the award or any of the matters referred to arbitration for reconsideration, the court shall, after the time for making an application to set aside the award has expired, pronounce the judgment according to the award and, upon the judgment so pronounced, a decree shall follow. section 17 of the act further postulates that no appeal shall lie from such decree except on the ground that it is in excess of, or not otherwise in accordance with the award an appeal would lie only if the decree was not in accordance with the award section 39 of the act provides that all orders of the nature specified in that section will be open to appeal irrespective of the fact whether they are final orders in the case or disposed of finally, or are merely interlocutory. against an order under section 17 of the act passing a decree in terms of the award, no appeal lies under section 39 of the act but it lies under the last part of section 17 on only two grounds, viz-(i) that the decree is in excess of the award and (ii) that the decree is not in accordance with the award. clauses (a), (b) and (c) of section 30 of the act set out the grounds on which an award could be set aside; and section 33 of the act further adds that the challenge could be also with reference to the existence or validity of an arbitration agreement or an award. if no steps are taken to set aside the award under sections 30 and 33 of the act, an unassailable reason must follow. under section 17 of the act, a decree is not open to challenge except by way of an appeal under the two grounds mentioned in the said section. whatever may be the ground of impeachment, it has got to be agitated under sections 30 and 33 of the act and if there is an omission to do so, one cannot avoid the bar created by section 17 of the act. since the correctness of the award was not challenged in m/s. shihboo mal and sons' case (supra), therefore, no appeal was maintainable and the decision of the learned single judge in that case is in accordance with law and the correctness of the same cannot be doubted.13. in the instant case, respondents nos. 1 and 2 filed objections to the award, which have been mentioned in the earlier part of the judgment, in the objections filed by the respondents, it was mentioned that the 'award made by the arbitrator does not deserve to be made a rule of the court and it deserves to be set aside on the grounds that the arbitrator has misconducted himself and the proceedings; that the award has been improperly procured and is otherwise invalid; that the arbitrator in his award did not give the details of the amount awarded; and that the award is not self-contained. it was also claimed that the award has been made illegally and without jurisdiction as it was against the provisions, terms and conditions of the nit and the tenders submitted by the contractors since the senior subordinate judge refused to set aside the award and passed a decree in terms of the award, therefore, in view of section 39 of the act, the appeal filed by respondents nos. 1 and 2 was maintainable before the district judge, karnal the reference made by the learned single judge is answered that an appeal is maintainable against an order refusing to set aside the award and passing a decree in terms of the award.14. the judgment and decree passed by the learned district judge, karnal, was not challenged on merits. therefore, the revision petition is dismissed with no order as to costs.