Nirmala vs Government of NCT Delhi | case brief/case summary/ case in short | 170 (2010) Delhi Law Times 577 (DB)
General 50. Subject to the provisions of section 48 and 52. order of when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance ~4th the order from males. of succession given below :
(a) male lineal descendants in the male line of descent : Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive: Provided further that the son or sons of a predeceased on how lowsoever shall inherit the share which would have devolved upon the deceased if he had been then alive ;
(b) widow;
(c) father;
(d) mother, being a -widow;
(e) step mother, king a widow;
(f) father's father;
(g)~ father's mother, being a widow: -
(h) widow of a male lineal descendant in the male line of descent:
(i) unmarried daughter;
6) brother, being the son of the same father as the deceased;
(k) unmarried sister;
(l) brother's son, the brother having been a son of the same father as the deceased;
(m) father's father's son;
(n) brother's son's son;
(0) father's father's son's son;
(p) daughter's son.
Facts of the case:
1. The case is related to the land dispute arisen out of children of 1st wife and 2nd wife of Inderjeet Singh.
2.After the death of the Death of shri Inder Singh, the property as per provisions of S. 50 of DLR Act goes to Respondent 3, 4 and 5.
3. Petitioner 1 moved an application before tehsildar on 05-02-2007, to mutate the above mentioned disputed land to petitioners. However, the same was rejected by tehsildar on grounds of S. 50 of DLR Act.
4.Further , Petitioner 1 called a meeting of panchayat where it was unanimously in presence of respondent 3, 4 and 5 decided that 1/3 of the land was to be given to petitioners.
5. Share was given to petitioner, but then also, respondent 3-5 were creating hindrances. Following which Petitioner 1 approached SDM and Deputy Commissioner of the area where her applications were not entertained.
Contentions of Petitioners:
Hence the present writ petition was filed on following contentions:
1. seeking a direction for quashing / setting aside Section 50 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as the "DLR Act") as being violative of Articles 14, 16 and 19 of the Constitution of India, and also being impliedly repealed by the Hindu Succession (Amendment) Act, 2005.
2.The petitioners are also seeking a direction to the respondents to mutate the disputed agricultural land left by the deceased husband of petitioner No. 1, equally, in favour of the petitioners and respondent Nos. 3, 4 and 5.
3. The learned counsel for the petitioners, laying emphasis on the above-mentioned decision, submitted that it was only because of Section 4(2) of the HSA that the rule of succession with regard to agricultural land was to be as per Section 50 of the DLR Act and not in accordance with the HSA. Hence, with the omission of Section 4(2) of the HSA by virtue of the 2005 Hindu Succession Amendment Act, the rule specified in Section 50 of the DLR Act is no longer saved and has, in fact, been repealed with effect from 09.09.2005, i.e., the date the Amendment Act came into force.
4. Learned counsel for petitioner cited case of Smt. Mukesh & Ors. v. Bharat Singh & Ors where it was held that
" 7. Due to Sub-section (2) to Section 4 of the Hindu Succession Act, 1956 the rule of succession stipulated under the Hindu Succession Act, 1956 was subject to any law for the time being in force relating to agricultural holdings. Thus, if succession to an agricultural holding was stipulated in any local law applicable to an agricultural holding, provisions thereof would apply relating to devolution of interest in a holding. The effect of deletion of Sub-section (2) to Section 4 of the Hindu Succession Act, 1956 due to the promulgation of the Hindu Succession (Amendment) Act, 2005 is that with effect from the date when the Amending Act was promulgated succession would be as per the Hindu Succession Act, 1956.
8. Prima facie, the Amending Act of 2005 cannot be read retrospectively as the Amending Act has not been given a retrospective operation. Meaning thereby, successions which had taken place prior to the promulgation of the Amendment Act of 2005 cannot be disturbed.
9. Section 3 of the Amending Act has substituted the existing Section 6 of the Hindu Succession Act. One gets a clue of the legislative intent when one looks at Sub- Section (3) of Section 6, as amended. It stipulates that where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 his interest in the property of a joint family governed by Mitakshara Law shall devolve by testamentary or intestate succession and not by survivorship. A daughter is given a share equal to that of a son.
10. In respect of the co-parcenery property the right of a daughter to receive a share equal to that of a son applies only if the death of male Hindu is after commencement of the Amendment Act, 2005."
5. The learned counsel for the petitioners pointed out that the facts of the present case are different from that of Ram Mehar (supra) and Mukesh v. Bharat Singh (supra) inasmuch as the owner of the disputed agricultural land in the present case, Late Shri Inder Singh, died on 15.12.2006 i.e. after the Amendment Act had already come into force and after Section 4(2) had been omitted from the HSA. Thus, the protection to Section 50 of the DLR Act given by Section 4(2) of the HSA as applicable in the case of Ram Mehar (supra) did not exist any longer. Also, since, in the present case, the owner of the disputed agricultural land died in the year 2006, the amended provisions of the HSA would apply, which, in the case of Mukesh v. Bharat Singh (supra) were not applicable as the succession had opened on 10.06.1993, prior to the said amendment.
6. The learned counsel for the petitioners argued that Article 31B provided immunity to Acts placed in the Ninth Schedule of the Constitution but such immunity was subject to the power of any competent legislature to repeal or amend its provisions. While setting out the provisions of Article 31B earlier in this judgment, we had emphasized the words "subject to the power of any competent legislature to repeal or amend it". Referring to those words, it was contended by the learned counsel for the petitioners that Parliament being a competent Legislature had amended the HSA in 2005 and had thus omitted Section 4(2) of the Act. It was this very section that was saving Section 50 of the DLR Act and its deletion with effect from 09.09.2005 signified an implied repeal of Section 50 of the DLR Act (a State law) and inasmuch as it became repugnant to the provisions of Sections 6, 8 and 9 of the HSA (a Union law), the same was liable to be quashed.
Contentions of Respondent:
1. t was contended by the learned counsel for the said respondents that this court in the case of Smt. Har Naraini Devi (supra) clearly held that "Section 50 (a) of the said Act cannot be challenged because of Article 31B of the Constitution and because it had been placed in the Ninth Schedule to the Constitution in 1964, that is, prior to 24.04.1973
2. It was further submitted that the removal of Section 4(2) of the HSA did not imply a repeal of Section 50 of the DLR Act and the immunity provided by Article 31B to Acts placed in the Ninth Schedule of the Constitution would continue.
3. As per lists provided in schedule 7, only states are allowed to enact laws relating to agricultural lands.
4. Finally, the learned counsel for the said respondents also relied on extracts of the decision in the case of Ram Mehar (supra) to support the argument that the DLR Act is a special enactment dealing with agricultural land and thus the rule of succession set out in Section 50 of the DLR Act has to be considered as the rule of succession to tenancy rights. Thus, according to the said learned counsel, this provision is saved from repeal by the HSA.
Final Decision:
1. We may straightaway say that the answers to the questions are that the rule of succession contained in Section 50 of the DLR Act has been repealed by virtue of the omission of Section 4(2) of HSA in 2005 and that, as a result, the rule of succession would be the one prescribed under the HSA (as amended). Consequently, the petitioners, being female, have the right to succeed to the disputed agricultural land inasmuch as succession opened out, in this case, on 15.12.2006 on the death of Late Inder Singh.
2. By virtue of clause (a) of sub-section (1) of section 4 of the HSA, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force ceased to have effect upon the commencement of the HSA in respect of any matter for which provision was made in the HSA. In other words, in respect of matters provided in the HSA, Hindu law including any custom or usage as part of that law stood abrogated. Similarly, by virtue of clause (b) of Section 4(1) of the HSA, any other law in force immediately before the commencement of the HSA, ceased to apply to Hindus in so far as it was inconsistent with any of the provisions of the HSA. The laws in force, of course, included statute law such as the DLR Act. Thus, by virtue of Section 4(1)(b), Section 50 of the DLR Act would cease to operate and apply to Hindus to the extent it was inconsistent with the HSA. In Ram Mehar (supra), this Court held that the said provisions of the DLR Act were inconsistent with the HSA. Thus, if no reference was made to sub-section (2) of Section 4 as it then existed, the HSA had virtually abrogated the provisions of Section 50 of the DLR Act in its application to Hindus to the extent of the inconsistency between the rule of succession prescribed in the HSA and the rule of succession stipulated in the said Section 50 of the DLR Act.
3. Now, the omission of sub-section (2) of Section 4 of the HSA by virtue of the Amendment Act of 2005 has removed the specific exclusion of the DLR Act from the overriding effect of the HSA which hitherto existed because of the said sub-section (2). The result is obvious. The protection or shield from obliteration which sub-section (2) provided having been removed, the provisions of the HSA would have overriding effect even in respect of the provisions of the DLR Act.
4. immunity granted under Article 31B is subject to the power of any competent legislature to repeal or amend the protected Act (in this case the DLR Act). The HSA and the Amendment Act of 2005 have been enacted by Parliament and there is no challenge to Parliament‟s competency. We have already indicated as to how the effect of omission of sub-section (2) of Section 4 of the HSA is to abrogate the provisions of the DLR Act to the extent of inconsistency with the provisions of the HSA. Clearly, the immunity under Article 31B is not a blanket immunity and is subject to the power of any competent legislature to repeal or amend the protected Act. This is exactly what Parliament has done. Thus, the argument raised on behalf of the Respondent Nos. 3 to 5 is clearly untenable.
5. For the aforesaid reasons, we hold that the provisions of the HSA would, after the amendment of 2005, have over-riding effect over the provisions of Section 50 of the DLR Act and the latter provisions would have to yield to the provisions of the HSA, in case of any inconsistency. The rule of succession provided in the HSA would apply as opposed to the rule prescribed under the DLR Act. The petitioners are, therefore, entitled to succeed to the disputed agricultural land in terms of the HSA. The respondent Nos. 1 & 2 are directed to mutate the disputed agricultural land, to the extent of Late Shri Inder Singh‟s share, in favour of the petitioners and respondent Nos. 3, 4 and 5 as per the HSA.
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