Gagan Hotel and Restaurant Vs. State of Punjab 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 petitioner is also having a licence from municipal committee to sell eatables like both vegetarian and non-vegetarian and the licence of the petitioner was also renewed by the excise department and the municipal committee for the year 1994-95. in january, 1995 the state government decided to declare mukatsar town where the petitioner is running his business as a holy city and as such there would be no sale of liquor in the municipal limits of mukatsar.t.h.b. chalapathi, j.1. the petitioner namely gagan hotel and restaurant obtained a licence in form l-4a and l-5-a for running a beer bar in the year 1982 which is being renewed from time to time. the petitioner is also having a licence from municipal committee to sell eatables like both vegetarian and non-vegetarian and the licence of the petitioner was also renewed by the excise department and the municipal committee for the year 1994-95. in january, 1995 the state government decided to declare mukatsar town where the petitioner is running his business as a holy city and as such there would be no sale of liquor in the municipal limits of mukatsar. according to the petitioner, inspite of the decision taken, the liquor vends were auctioned on 15.3.1995 and the petitioner also deposited a sum of rs. 30,000/- towards the licence fee for running the beer bar and sent his application for renewal of the licence, but the authorities refused to renew the licence on the ground that mukatsar was declared as a holy city, therefore no sale of liquor is permitted. according to the petitioner, its hotel is situated at a distance of half a kilometer from the gurudwara sahib, darbar sahib. the petitioner is seeking a writ of mandamus directing the respondents to renew his licence as he has already deposited the requisite licence fee.2. in the written statement filed by the respondents, it is contended that the petitioner has no fundamental right to have the licence renewed and that the hotel and restaurant of the petitioner is situated on the railway road and no liquor vend can be opened near a religious place as per the excise policy and the limits of the holy city were fixed by the government in accordance with the cabinet decision and the licence of the petitioner was not renewed for the year 1995-96 keeping in view the excise policy of the government under which mukatsar city has been declared as a holy city within the boundaries prescribed by the 1937 notification regarding municipal limits and the hotel of the petitioner falls within the limits of holy city and, therefore, the writ petition is liable to be dismissed as the petitioner has no legal right.3. it is not disputed that the petitioner hotel/restaurant is located within the municipal limits of mukatsar city as notified. the limits of municipality, mukatsar were notified by the local govt. department in its notification dated 25.3.1975 (annexure p-10). therefore, there is nothing on record to show that the petitioner's hotel/restaurant will not come within the municipal limits of muketsar as notified by the punjab government in its notification dated 23.12.1937 read with the notification dated 25.3.1975. there is also no dispute that mukatsar was declared as a holy city. the government issued excise policy in its memo no. l/9/95-et-2(8)/918 dated 9.3.1995. the relevant portion of the said policy reads as follows:-'it has been decided to declare bhaini sahib (district ludhiana), kiratpur sahib (district ropar), and mukatsar (district faridkot) as 'holy cities'. holy city limits for mukatsar, however, will be within the boundaries as specified by the notification no. 5310-c. i-37-a/4846 dated 23.12.37 issued by the local govt. department of punjab. there will be no vends or sale of liquor in the municipal limits/red line area of holy cities/villages'.4. it is the common case that the govt. has taken a policy decision not to grant or renew the licence in holy places. that policy cannot be challenged on the ground of any violation of fundamental rights. no citizen has got a right to trade in liquor. in cooverjee b. bharucha v. excise commissioner and the chief commissioner, ajmer and ors., (air 1954 s.c. 220), the apex court held as follows:-'there is no inherent right in a citizen to sell intoxicating liquor by retail; it is not a privilege of a state or of a citizen of the united states. as it is a business attended with danger to the community, it may, as already said, be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils. the manner and extent of regulation rest in the discretion of the government authority'.5. the supreme court laid down three propositions in the above mentioned case.(i) that there is no inherent right of citizens to carry on trade in intoxicating liquor (ii) the auction sale of liquor shop is a method by which carrying on particular trade in liquor is regulated and (iii) that there can be a monopoly only when a trade which could be carried on by all persons is entrusted to one or more persons to the exclusion of general public. the view expressed by the supreme court in cooverjee b. bhanicha's case (supra) was reiterated in nashirwar etc. v. state of madhya pradesh and ors., (air 1975 s.c. 360).6. thus it is clear that no person can claim as of right to obtain a licence or renew the licence for sale of liquor. the state government has got the right either to prohibit the sale of liquor or impose conditions while granting licence for the sale of liquor. when the government has taken a policy decision not to permit the sale of liquor in the holy cities, it is acting within the provisions of punjab excise act, 1914 (hereinafter referred to as the 'act')7. section 43 of the act provides that no person to whom a licence, permit or pass may have been granted shall be entitled to claim any renewal thereof and no claim shall lie for damages or otherwise in consequence of any refusal to renew a licence, permit or pass on the expiry of the period of which it, remains in force.8. under rule 12(a) of the punjab liquor licence rules, 1956, no person to whom, a licence has been granted shall be entitled to claim as of right renewal thereof and no claim shall lie for damages or otherwise in consequence of any refusal to renew a licence on the expiry of the period for which it was granted.9. when the government has taken a policy decision not to grant any licence within the particular municipal limits or renew the licence already granted to sell liquor within the particular municipal limits, the same cannot be found fault with because it is within the competence of the state government to regulate the sale of liquor in any particular area which includes prohibiting the sale of liquor in that particular area. therefore, i am of the opinion that refusal to renew the licence of the petitioner on the ground that mukatsar city has been declared as a holy city and government of punjab has taken a policy decision not to permit the grant or renewal of any licence for the sale of liquor within the municipal limits of mukatsar city, is absolutely valid. the petitioner cannot, as a matter of right, claim the renewal of his licence for the sale of liquor.10. on a consideration of the facts and circumstances of the case, i am of the opinion that the petitioner has no right for renewal of his licence and, therefore, the action of the respondents in refusing to renew his licence is legal and valid. i, therefore, do not find any grounds warranting interference with the same.11. the writ petition, therefore, fails and is, accordingly, dismissed. but in the circumstances of the case, there will be no order as to costs.