Amanjot and anr. Vs. Army Head Quarters Western Command (a Branch) 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. - 2 was given corporal punishment by his house perfect sadev preet and his house master rajneesh sharma. 10,000/-.11. before i part with this judgment, i would like to observe, in all fairness to the counsel for respondents, that when i was half way through in dictating judgment, mr. the proposal was put to the father of the petitioners who was present in the court and for the reason that he explained to me, i am satisfied that this course of withdrawing the order at this stage should not be permitted.v.k. bali, j.1. the matter herein pertains to future of two minor children who clamour for justice with a view to safeguard their career. it is rather in unfortunate circumstances that the petitioners have come to this court seeking a direction to be issued to the respondents and in particular to respondent no. 3 to readmit them in the school in the classes in which they were studying, after setting aside order annexure p-5 vide which they were expelled from the school.2. the brief facts of the case reveal that petitioners, who are brother and sister, were studying in army public school, degshai. the school aforesaid is managed by the army headquarters western command (a branch), chandimandir. on june 3, 1993, amandeep petitioner no. 2 was given corporal punishment by his house perfect sadev preet and his house master rajneesh sharma. he was caned mercilessly and made to crawl on his elbows till the same started bleeding. he was also slapped as he could not get his sports t-shirt issued from the clothing store. even though he was mercilessly beaten and tortured, he was not given first aid/medical treatment and he could not have his food as he was unable to go to the dining hall due to severe pain.3. on 5.6.1993, the parents of the petitioner visited the school to attend the annual function. they were distressed to see their child in a hopeless state. petitioner amandeep was shown to the chief guest lt. general b.k.n. chhibar. this visibly annoyed the principal of the school mr. v.k. mehta. amandeep was, however, brought to chandigarh and got medically examined at general hospital. the medical certificate issued by the doctor concerned shows four injuries which could still be detected. this incident of beating was also highlighted by the press, i.e. the tribune in its news item which appeared on 7.6.1993, copy whereof, has been annexed as annexure p3 with this writ petition. the news item with its heading is 'beaten till he limped'. the father of the petitioners reported the matter to union territory administration vide his letter dated 13.6.1993. it appears that when the news item aforesaid and complaint addressed by the father of the petitioners came to the notice of the principal, the petitioners were expelled by issuing them registered letter on that behalf on 30.6.1993. alongwith the letter of expulsion, transfer certificates were also sent to the petitioners, the same were counter signed by the district education officer, chandigarh administration. it is pleaded that after expulsion from the a.p.s. dagshai school, the petitioners were on the road and have not been admitted else where. no notice or letter was ever received by the petitioners before taking the extreme step of expelling them from the school in mid term. on the aforesaid facts, it is pleaded and so argued by mr. mattewal, the learned senior advocate that the career of the petitioners could not be ruined for no fault of theirs. there was nothing against them which could confer power and jurisdiction with the authorities to expel them from the school. this expulsion would not only waste their one academic year but the parents of petitioners would suffer loss of substantial amount of rs, 50,000/- which they spent on admission and study for some months when they were in the school. it is further argued that in case some action was to be taken against the petitioners, an opportunity should have been given to them by alleging some activity done by the petitioners that might be prejudicial to the school or its reputation.4. the cause of the petitioners has been opposed through written statement filed by respondent no. 3 more on technical pleas than on merits of the case. by way of preliminary objections, it is pleaded that this court has no territorial jurisdiction as the impugned order expelling the petitioners were passed in the state of himachal pradesh. it is further pleaded that the writ petition is not maintainable as the same could not lie against a school which was a private registered society maintaining itself out of its own funds. in that context it is further pleaded that the board of governors consists of senior officers of the armed forces who are honorary members. the third preliminary objection is that the petitioners have alternative effective remedy of appeal under school regulation 226 which has not been availed of by them.5. in so far as the merits of the case are concerned, all that has been pleaded in paragraph 8 of the written statement is that since the parents of the petitioners gave exaggerated version of the incident to the press and or that brought to the school, action was taken against their children.6. after hearing the learned counsel for the parties and going through the records of the case, i am of the considered view that the respondent-authorities have acted in this case in absolutely arbitrary manner. it is not denied that petitioner amandeep was beaten, even though there is some dispute with regard to number and nature of injuries suffered by him. the action has still been taken against amandeep, who was only a victim and also his sister, who was studying in the school and this action is sought to be supported on the solitary ground that reputation of the school had come under a cloud on account of news item that appeared in the press. under the given circumstances, this court is of the view that no action could be taken against amandeep, who was all through innocent and his sister, who was not even involved in this episode. it is rather surprising to note that the principal of the school instead of putting the things right and having some sympathy with the petitioners, had felt pinched about the reputation of the school. the principal instead should have set his own house in order. the matter does not end there as even if it is assumed that there was some exaggeration in the news item that was published in the tribune and the same had brought down the reputation of the school, the petitioners, who were teenaged students, could not be held responsible for the same. it is the pleaded case of the respondents themselves that the news item was authored by the father of petitioners and it was he who would have feeded the press. further more, no notice of any kind was ever served upon the petitioners or their father and without knowing their view point with regard to the news items and the person who was responsible for leaking it, extreme step of expelling petitioners was taken and that too in the mid stream that is, when the session had progressed substantially when the petitioners could not be admitted anywhere else. the principal, instead of setting his own house in order, has proceeded to take action against petitioners which has to be held not only to be arbitrary but also an act of high-handedness.7. so far as the preliminary objections are concerned, it appears that the respondents are unmindful of the provisions of article 226 of the constitution of india which, in turn, provides jurisdiction to a court where cause of action even in part has taken place. that apart, case of the petitioners is that respondent no. 3 is managed by army head quarters, western command (a branch), chandi mandir and the same is admittedly within the territorial jurisdiction of this court. mr. mattewal relies upon the decision recorded in civil writ petition no. 1375 of 1988 (maluk singh v. the union of india and anr.) to contend that the court, where even a part of action arises, would have jurisdiction to entertain the writ petition.8. in so far as second preliminary objection is concerned, the same deserves to be rejected in view of ratio of judgment rendered by the supreme court in 'shri anadi mukta sadguru shree muktajee vandasjiswami suvarna javanti mahotsay smarak trust and ors. v. v.r. rudani and ors.', air 1989 supreme court 1607 where it has been held that 'if the rights are purely of a private character, no mandamus can issue, if the management of the college is purely a private body with no public duty mandamus will not lie. these are two exceptions to mandamus. but once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. 'it was further observed that 'the law relating to mandamus has made the most spectacular advance, article 226 confers wide powers on the high courts to issue writs in the nature of prerogative writs. this is a striking departure from the english law. under article 226, writs can be issued to 'any person or authority'. it can be issued 'for the enforcement of any of the fundamental rights and for any other purpose. the term 'authority' used in article 226, in the con text, must receive a liberal meaning unlike the term in article 12'. it has been further held that 'the 'words' any person or authority' used in article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the state. they may cover any other person or body performing public duty. it is not disputed that while imparting education, the school is performing public duty.9. insofar as third contention of alternative remedy is concerned, the same also deserves to be rejected. if the petitioners are relegated to alternative remedy of appeal under the school regulation 226, then in the very nature of things it will take a long time and meanwhile at least one academic year of petitioners would be lost. further, it has not been mentioned as to before which authority of the school the appeal is competent. if the appellate authority also consists of the principal of the school, even as one of its members, it would be an appeal before the person who shall have to judge his own action.10. for the reasons stated above, this writ petition is allowed and a direction is issued to the respondents and in particular respondent no. 3 to forthwith readmit both the petitioners. any loss of time that petitioners may have suffered on account of illegal expulsion will not be taken into account for any purpose. they will be permitted to take examination of the classes in which they are studying on the strength of lectures they could possibly attend. this writ petition deserves to be allowed with examplary costs which are quantified at rs. 10,000/-.11. before i part with this judgment, i would like to observe, in all fairness to the counsel for respondents, that when i was half way through in dictating judgment, mr. gaur said that the principal will withdraw the order and will admit the petitioners. the proposal was put to the father of the petitioners who was present in the court and for the reason that he explained to me, i am satisfied that this course of withdrawing the order at this stage should not be permitted. order dasti.