Atma Ram Sohan Lal Agencies (P.) Ltd. Vs. Union of India (Uoi) - 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. - according to the petitioner, the arguments in the appeal were heard by the commissioner (appeals) on 14-5-2008 but despite lapse of considerable time, orders in the appeal were not pronounced by the appellate authority forcing the petitioner to approach this court for a declaration to the effect that the failure of the appellate authority to decide the appeal within a reasonable time was illegal, arbitrary and mala fide.ordert.s. thakur, c.j.1. in this petition for a writ of mandamus, the only relief which the petitioner has sought is a writ of mandamus directing an early disposal of the appeal filed and pending before the commissioner (appeals), central excise & customs, chandigarh. according to the petitioner, the arguments in the appeal were heard by the commissioner (appeals) on 14-5-2008 but despite lapse of considerable time, orders in the appeal were not pronounced by the appellate authority forcing the petitioner to approach this court for a declaration to the effect that the failure of the appellate authority to decide the appeal within a reasonable time was illegal, arbitrary and mala fide.2. when the matter came up before us on 15-5-2009, we issued notice to the respondents and directed mr. gurpreet singh, learned standing counsel for union of india to verify whether the appeal filed by the petitioner before the commissioner (appeals), central excise & customs, chandigarh had been disposed of and in case the same was still pending, the reasons why the same was not being disposed of.3. mr. gurpreet singh, learned standing counsel has now filed an application placing on record a copy of the order in appeal dated 19-5-2009. he submits that since the appeal in question has been disposed of by the commissioner, this petition does not survive for consideration and may be disposed of as such.4. learned counsel for the petitioner, however, contended that the delay in disposal of the appeal was itself sufficient to render the appellate authority's order illegal and liable to be set aside. he urged that the supreme court had in anil rai v. state of bihar 2009 (233) elt 13 directed that appeals ought to be decided within six months from the date of the conclusion of the hearing. he urged that this court could set aside the order passed by the appellate authority on that ground alone in the present proceedings. we regret for inability to accept that submission of learned counsel for the petitioner. apart from the fact that there is no challenge nor could there be any challenge to an order which was not in existence on the date the writ petition was filed, we feel that in case the petitioner is aggrieved of the order passed in the appeal, he ought to seek remedy against the same in appropriate proceedings in accordance with the statutory provisions. if the delay in disposal of the appeal is said to be a ground of attack against the order, it shall be open to the petitioner to urge the said ground also, in which event, the tribunal before whom the appeal is filed is expected to examine the said aspect also.5. with the above observation and reserving liberty for the petitioner to challenge the order passed by the appellate authority in appropriate proceedings, the present writ petition is disposed of leaving the parties to bear their own costs.

Judgment:
ORDER

T.S. Thakur, C.J.

1. In this petition for a writ of mandamus, the only relief which the petitioner has sought is a writ of mandamus directing an early disposal of the appeal filed and pending before the Commissioner (Appeals), Central Excise & Customs, Chandigarh. According to the petitioner, the arguments in the appeal were heard by the Commissioner (Appeals) on 14-5-2008 but despite lapse of considerable time, orders in the appeal were not pronounced by the Appellate Authority forcing the petitioner to approach this Court for a declaration to the effect that the failure of the Appellate Authority to decide the appeal within a reasonable time was illegal, arbitrary and mala fide.

2. When the matter came up before us on 15-5-2009, we issued notice to the respondents and directed Mr. Gurpreet Singh, learned Standing Counsel for Union of India to verify whether the appeal filed by the petitioner before the Commissioner (Appeals), Central Excise & Customs, Chandigarh had been disposed of and in case the same was still pending, the reasons why the same was not being disposed of.

3. Mr. Gurpreet Singh, learned Standing Counsel has now filed an application placing on record a copy of the order in appeal dated 19-5-2009. He submits that since the appeal in question has been disposed of by the Commissioner, this petition does not survive for consideration and may be disposed of as such.

4. Learned Counsel for the petitioner, however, contended that the delay in disposal of the appeal was itself sufficient to render the Appellate Authority's order illegal and liable to be set aside. He urged that the Supreme Court had in Anil Rai v. State of Bihar 2009 (233) ELT 13 directed that appeals ought to be decided within six months from the date of the conclusion of the hearing. He urged that this Court could set aside the order passed by the Appellate Authority on that ground alone in the present proceedings. We regret for inability to accept that submission of learned Counsel for the petitioner. Apart from the fact that there is no challenge nor could there be any challenge to an order which was not in existence on the date the writ petition was filed, we feel that in case the petitioner is aggrieved of the order passed in the appeal, he ought to seek remedy against the same in appropriate proceedings in accordance with the statutory provisions. If the delay in disposal of the appeal is said to be a ground of attack against the order, it shall be open to the petitioner to urge the said ground also, in which event, the Tribunal before whom the appeal is filed is expected to examine the said aspect also.

5. With the above observation and reserving liberty for the petitioner to challenge the order passed by the Appellate Authority in appropriate proceedings, the present writ petition is disposed of leaving the parties to bear their own costs.