Savitri Devi 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. - 13. the facts emanating from the pleadings and supporting documents clearly show that the setting up and running of factory of the petitioners had been authorised by the respondents. we find the action of the respondents to be clearly arbitrary and without application of mind. the acquisition proceedings were quashed invoking the principle of estopped as well. the action of the respondents in acquiring the land of the petitioners is therefore clearly unreasonable and arbitrary.ajai lamba, j.1. this shall dispose of c.w.p. no. 17469 of 2006 titled savitri devi v. state of haryana and ors. and c.w.p. no. 17485 of 2006 titled vinod oil and general mills v. state of haiyana and ors. the same acquisition proceedings have been challenged. the petitions involve common questions of facts and law.2. the acquisition proceedings were initiated by issuance of notification under section 4 of the land acquisition act, 1894 (for short, 'the act') dated 15.3.2004. the declaration under section 6 of the act was issued on 14.3.2005. the respondents seek to acquire land for a public purpose namely for development of the area as residential and commercial area under the haryana urban development authority act, 1977 by the haryana urban development authority in the area of village hisar hadbast no. 146 and village satrod khas hadbast no. 154, 155, tehsil and district hisar.3. the only issue raised is that the petitioners in the two petitions had set up an industrial unit in the year 1981, which is running under the name and style of m/s vinod oil and general mills', the same being a partnership concern. before setting up of the unit, permission from the competent authority namely, director, town and country planning, haryana at chandigarh was sought to change land use from agricultural to industrial which was given. the construction of the factory and its operation was duly authorised by the respondents.4. the petitioners are contributing to the revenue of the state by paying lacs in taxes. the land was sought to the acquired earlier while issuing notification under section 4 of the act dated 19.5.1992 for the development and utilization of land as industrial area at hisar. the petitioners submitted objections under section 5a of the act, re-sultantly the same were accepted and the land was released.5. now after 11 years, again notification under section 4 of the act has been issued for acquisition of the land including that of the petitioners. objections under section 5a of the act were filed. however, ignoring the fact situation, the land of the petitioners has been included in the declaration under section 6 of the act, hence this petition. the action of the respondents is arbitrary.6. it is pleaded that the principle of estoppel, in view of the facts and circumstances of the case, can safely be invoked. other than the above, it is the policy of the respondent state that any factory or other structure which has been raised after getting the required permission/permission to change land use would not be acquired and therefore, it is against the very policy of the respondents to acquire the land of the petitioners.7. learned counsel for the respondents, on the other hand, has argued that the land has been acquired for development of the area as residential and commercial area. the earlier acquisition and release of land on which construction has been raised would not in any way bar fresh acquisition of the same land. factory has been constructed on the land of the petitioners, which cannot be allowed to exist in view of the public purpose to be achieved through the impugned acquisition viz. development of the area as residential and commercial area. learned counsel has placed on record the site plan of the area showing the planning scheme.8. no other argument has been raised. we have heard the learned counsel for the parties and have gone through the record of the cases.9. we have to first consider the nature of the construction as to whether it has been authorised by the respondents or not.10. perusal of the pleadings in c.w.p. no. 17469 of 2006 titled savitri devi v. state of haryana and ors. shows that the petitioner namely savitri devi along with her brothers; bhagwan dass aggarwal, banarasi dass gupta, inder sain aggarwal constituted a registered partnership firm under the name and style of m/s vinod oil & general mills in the year 1981. on an application having been filed, the director, town and country planning, haryana, approved the building plans for construction of the industrial building in respect of the land measuring 23 kanals 6 marlas falling in khasra no. 148/1, 2, 9, 10 vide letter dated 21.4.1981, annexure p-2, subject to the provisions of the punjab scheduled road and controller areas restriction of unregulated development act, 1963.11. annexure p-l dated 11.7.1981 shows that the director, town and country planning, haryana granted the permission for change of land use for the construction of oil & general mills with respect of the same land measuring 23 kanal 6 marlas. the site plan itself has been appended as annexure p-4. these facts have not been disputed by the respondents.12. in para 7 of the petition, it has specifically been pleaded that in the financial year 2003-04, the firm made sales to the tune of rs. 10.71 crore, in 2004-05 - rs. 11.77 crore and in 2005-06 - rs. l 1.60 crore. for all the three years. value added tax has been paid in excess of rs. 42 lacs each year.13. the facts emanating from the pleadings and supporting documents clearly show that the setting up and running of factory of the petitioners had been authorised by the respondents.14. the pleadings also show that earlier, notification under section 4 of the act was issued on 19.5.1992 for development of the area as industrial area which included the land now sought to be acquired. the petitioners filed objections under section 5a of the act which have been placed on record as annexure p-6. it seems that the objections were considered and the accepted and the land of the petitioners was released from acquisition.15. the argument raised by the learned counsel for the respondents that the land has been acquired for development of the area as a residential and commercial area and therefore the industry cannot be allowed to exist in a residential area, in the facts and circumstances of the case, cannot be accepted for two reasons.16. firstly, a discussed above, the respondents authorised the setting up and running of the factory in the year 1981. it seems that thereafter the business of the respondents progressed considerably as they have been paying taxes, the last figure being rs. 46.4 lacs against a total sale of its product to the tune of rs. 11.60 crore. it thus transpires that it was on the permission having been given by the respondents, the petitioners constructed the factory and continued to develop the land as an industrial unit.17. the respondents once having allowed the petitioners by giving specific and explicit permission to change land use and develop the area as an industry cannot now turn around after 26 years to say that the same is required to be developed for residential purposes. we find the action of the respondents to be clearly arbitrary and without application of mind. before land is to be acquired for a particular purpose, not only revenue record but also the fact situation of the area is required to be seen after conducting survey of the area. executive exercise is required to be under taken to identify the existing structures on land, their nature whether they are authorised or unauthorised and other similar and relevant parameters. it stands established that such executive exercise has not been carried out by the respondents rendering their action illegal.18. secondly, the respondents had earlier proposed to acquire the land of the petitioners while issuing notification under section 4 of the act on 19.5.1992. the petitioners objected to the acquisition. the objections were accepted and the land of the petitioners was released. the fact situation remains the same.19. a similar situation arose in roshan lal and ors. v. state of haryana and ors. (2003-3) 135 p.l.r. 199 wherein the government had released the land from acquisition on imposing certain conditions on the land owners. the land was acquired again at a later stage after the landowners had invested in the development of area. the acquisition proceedings were quashed invoking the principle of estopped as well. in our considered opinion, the present case is also covered by the said decision.20. another factor that needs to be considered is that when a person wants to set up a factory and follows relevant rules by taking the required permission and sets up a unit which is authorised by the respondents, can his existence be left in suspension for always?21. in our considered opinion, the respondents cannot be allowed to first authorise the setting up of a factory, allow it to function for more than two deeds and then acquire it in total disregard to the rights of the owners. if such a position is allowed to exist, no person would feel secure in setting upon a factory and developing his business. the setting up of a factory does not involve only constructing a building but it is also involves so may other factors i.e. creating a market for the product, arrangement for raw material, labour etc. it is only after considerable time that the project starts giving returns. uncertainty is antithetic to development and progress of not only the person concerned but also the country. the action of respondents in first authorising the setting up of a factory and then acquiring the same is inequitable and unreasonable.22. this has to be viewed in the context of the purpose of acquisition of land, which in this case is not for the development of infrastructure, railways/metro or a purpose related thereto, irrigation, water supply, drainage, road communication or for the purpose of maintaining any structure or system pertaining to electricity etc.23. referring to the site plan of the area, we find that the land of the petitioners is located in one corner of the area that is proposed to be developed. to the north of the land in question, as per the learned counsel for the respondent, land has not been acquired. on specific query, learned counsel for the respondents has informed us that the utilization of land of the petitioners has not yet been determined and therefore it has not been shown in commercial area, residential area, community center etc. in these circumstances, the land of the petitioners could conveniently be adjusted in the planning scheme. the action of the respondents in acquiring the land of the petitioners is therefore clearly unreasonable and arbitrary.in view of the discussion above, we find the action of the respondents in acquiring the land of the petitioners to be arbitrary, unreasonable and inequitable. resultantly, the petition are allowed. the impugned notifications issued under sections 4 and 6 of the act with regard to the land of the petitioners are thereby quashed.