Narpal Singh Vs. the Commissioner Hisar Division and anr. - 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. - (3) the licensing authority may by order in writing suspend a licence for such periods as it thinks fit or revoke a licence -(a) if the licensing authority is satisfied that the holder of the licence is prohibited by this act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this act; or (e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.mehtab s. gill, j.1. the petitioner has filed this petition under article 226 of the constitution of india for issuance of a writ in the nature of certiorari for quashing the orders dated 13th june, 1997 (annexure p-4) passed by respondent no. 2 and 8th october, 1998 (annexure p-6) passed by respondent no. 1.2. according to the petitioner, he is a political man and holds arms licence no. 1269/al/narwana but he never misused his weapon. in spite of this, respondent no. 2-district magistrate, jind issued a show cause notice dated 3rd april, 1997 (annexure p-1) on the basis of report made by the superintendent of police and the sub divisional magistrate after an inquiry made by them. he submitted his reply dated 21st april, 1997 (annexure p-2) to the show cause notice specifically stating therein that he was never convicted or sentenced. however, while considering his reply in a correct perspective, respondent no. 2 passed order dated 13th june, 1997 (annexure p-4) cancelling his arms licence and appeal filed by him was dismissed by respondent no. 1 vide order dated 8th october, 1998 (annexure p-6).3. in the written statement filed on behalf of respondents, the following particulars of the cases registered against the petitioner have been given:-(i) f.i.r. no. 173 dated 26th may, 1979 under section 61/1/14 of the excise act, police station, tohana in which the petitioner was convicted vide order dated 12th february, 1980;(ii) f.i.r. no. 89 dated 3rd april, 1980, under sections 452/324/506/34 i.p.c. police station, kalayat wherein the accused was convicted and sentenced vide order dated 14th november, 1982;(iii) f.i.r. no. 166 dated 7th september, 1982 under sections 448/325/506/148/149 l.p.c., police station city, jind, wherein the accused was convicted and sentenced vide order dated 2nd august, 1986; and(iv) f.i.r. no. 176 dated 27th june, 1995, under sections 398/452 i.p.c. police station, civil lines, hisar.4. the respondents have further averred that the order cancelling arms licence of the petitioner was passed after giving him reasonable opportunity of hearing.5. we have heard arguments of shri r.s. kundu, counsel for the petitioner and shri jaswant singh, deputy advocate general, haryana and perused the record.6. section 17 of the arms act, 1959, which empowers the competent authority to suspend or revoke the licence reads as under:-'17. variation, suspension and revocation of licences.- (1) the licensing authority may vary the conditions subject to which a licence has been granted except such of them as have been prescribed and may for that purpose require the licence holder by notice in writing to deliver-up the licence to it within such time as may be specified in the notice.(2) the licensing authority may, on the application of the holder of a licence, also vary the conditions of the licence except such of them as have been prescribed.(3) the licensing authority may by order in writing suspend a licence for such periods as it thinks fit or revoke a licence -(a) if the licensing authority is satisfied that the holder of the licence is prohibited by this act or by any other law for the time being in force, from acquiring, having in his possession or carrying any arms or ammunition, or is of unsound mind, or is for any reason unfit for a licence under this act; or(b) if the licensing authority deems it necessary for the security of the public peace or for public safety to suspend or revoke the licence; or(c) if the licence was obtained by the suppression of material information or on the basis of wrong information provided by the holder of the licence or any other person on his behalf at the time of applying for it; or(d) if any of the conditions of the licence has been contravened; or(e) if the holder of the licence has failed to comply with a notice under sub-section (1) requiring him to deliver-up the licence.(4) the licensing authority may also revoke a licence on the application of the holder thereof.(5) where the licensing authority makes an order' varying a licence under sub-section (1) or an order suspending or revoking a licence under sub-section (3), it shall record in writing the reasons therefore and furnish to the holder of the licence on demand a brief statement of the same unless in any case the licensing authority is of the opinion that it will not be in the public interest to furnish such statement.(6) the authority to whom the licensing authority is subordinate may by order in writing suspend or revoke a licence on any ground on which it may be suspended or revoked by the licensing authority; and the foregoing provisions of this section shall, as far as may be, apply in relation to the suspension or revocation of a licence by such authority. (7) a court convicting the holder of a licence of any offence under this act or the rules made thereunder may also suspend or revoke the licence:provided that if the conviction is set aside on appeal or otherwise, the suspension or revocation shall become void.(8) an order of suspension or revocation under sub-section (7) may also be made by an appellate court or by the high court when exercising its powers of revision.(9) the central government may, by order in the official gazette, suspend or revoke or direct any licensing authority to suspend or revoke all or any licenses granted under this act throughout india or any part thereof.(10) on the suspension or revocation of a licence under this section, the holder thereof shall without delay surrender the licence to the authority by whom it has been suspended or revoked or to such other authority as may be specified in this behalf in the order of suspension or revocation.'7. a perusal of the record shows that the allegations contained in f.i.r. no. 176 of 1995 registered at police station, civil lines, hisar under sections 398/452, indian penal code, suggest that the petitioner had misused his licence inasmuch as he handed over his gun to shri sumer singh and the same was recovered from him. the other cases registered against the petitioner show that he is a person habitual of indulging in criminal activities and there is every possibility that he can endanger the public peace and public safety. he has also been challaned, convicted and sentenced in various cases. in the background of these facts, it is not possible to accept the argument of shri kundu that the impugned orders suffer from any error of law warranting interference by the high court under article 226 of the constitution of india.8. for the reasons mentioned above, the writ petition is dismissed.