Gram Panchayat Vs. Sub Divisional Officer (Civil) 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. - applications filed by the gram panchayat as well as by respondents no.ashok bhan, j.1. gram panchayat bhaniri has filed this petition impugning order annexure p2 passed by sub divisional officer (civil) patiala, treating the proceedings taken by the revenue officers for giving possession of the land in dispute to the petitioner as cancelled.2. petitioner gram panchayat had given the land in dispute to harnek singh and harchand singh respondents no. 2 and 3 respectively on lease. respondents no. 2 and 3 refused to vacate the land. treating them to be in unauthorised possession of the land, gram panchayat filed application under section 7 of the punjab village common lands (regulation) act, 1961 (hereinafter referred to as the act). respondents no. 2 and 3 also filed applications under section 11 of the act with a prayer that they be declared as owners of the land because the land in their possession was not shamlat deh. applications filed by the gram panchayat as well as by respondents no. 2 and 3 were disposed of by the collector together on 28.1.1991. collector held that the land was not shamlat deh and, therefore, gram panchayat could not eject respondents no. 2 and 3.3. gram panchayat filed four appeals against the order of the collector before the additional director of panchayats (exercising the powers of the commissioner). respondents no. 2 & 3 did not appear in spite of service and were ordered to be proceeded ex parte. appellate authority accepted the appeal on 3.7.1992 and set aside the order of the collector. respondents no. 2 and 3 challenged the order of additional director of panchayats by filing two different writ petitions 10333 and 10334 of 1992. while issuing notice of motion, high court stayed the dispossession of respondents no. 2 and 3 from the land in their possession. in the meanwhile respondents no. 2 and 3 approached the joint development commissioner (exercising the powers of commissioner) for setting aside the ex parte order. ex parte order dated 3.7.1992 was set aside on 24.2.1993 and the case was remanded to the appellate authority for decision on merits.4. appeals came up for hearing before the joint development commissioner, punjab, on merits. the appeals filed by the gram panchayat were accepted on 11.5.1994 and the order of the collector dated 28.1.1991 was set aside. harnek singh filed cwp 15887 of 1994 in this court challenging the order dated 11.5.1994 passed by the appellate authority. similarly another writ petition was filed by respondent no. 3. cwp 15887 of 1994 filed by harnek singh was disposed of by this court on 31.3.1995 copy of which has been attached as annexure r3 with the replication.5. after the decision of the case by the appellate authority on merits, petitioner filed an application for obtaining possession. petitioner was delivered possession of the land in dispute. meanwhile respondents no. 2 and 3 approached the revenue authorities to cancel the proceedings for giving possession to the petitioner as dispossession of respondents no. 2 and 3 from the land in dispute had been stayed by this court. on this representation, the impugned order annexure p2 has been passed by sub divisional officer (civil) patiala.6. counsel for the parties have been heard.7. cwp 10333 and 10334 of 1992 had been filed against the order of additional director of panchayats (exercising the powers of commissioner) dated 28.1.1991. order of the additional director of panchayats was set aside by the appellate authority itself on 24.2.1993 and after that a fresh order was passed on merits after hearing the parties on 11.5.1994. on setting aside of the ex parte order passed by the appellate authority cwp 10333 and 10334 of 1992 became infructuous. respondents filed writ petitions impugning the order passed on merits by the appellate authority. the said writ petitions have been dismissed. copy of the order passed in one such petition (c.w.p. no. 15887 of 1994) has been attached as annexure r3 in which it has been held that as respondents no. 2 and 3 had been shown as lessees in the jamabandi for the year 1985-86, they could not set up a title adverse to the landlord and claim to be the owner of the land. it was further held that respondents no. 2 and 3 had lost possession of the land during the pendency of the writ petition.8. case of the petitioner gram panchayat has throughout been that they have been put in possession of the land in dispute. act of sub divisional officer (civil) cancelling the proceedings for handing over possession of the land to the gram panchayat under the circumstances cannot be sustained. respondents no. 2 and 3 being the lessees could not claim to be landlord and deny the title of the original owner. it has been found in cwp 15887 of 1994, that petitioner had lost possession of the land during the pendency of the writ petition.9. for the reasons stated above, the impugned order annexure p2 cancelling the proceedings for giving possession of the land to the petitioner cannot be sustained. accordingly, order annexure p2 is quashed. this writ petition stands allowed with no order as to costs.