CASE DETAILS
| Bench Badur Ahmed J. Veena Birbal J. | Case no. (2010) SCC Online Del 2232 | Acts/law Hindu succession Act and Delhi Land Reforms Act |
INTRODUCTION:
In NIRMALA AND OTHERS vs. GOVERNMENT OF NCT OF DELHI AND OTHERS, it is important to understand the issue concerning the applicability of section 5 of the Hindu Succession Act 1954 (hereinafter mentioned as HSA) after the amendment of 2005. There was a controversy concerning women’s rights in agricultural land due to section 50 of the Delhi Land Reforms Act, 1954 hereinafter mentioned as DLR Act. I will discuss a series of cases in further blogs concerning the same issue and how the apex court ended up with a landmark judgment concerning the inconsistency between the DLR Act and the HSA
FACTS:
Petitioner no. 1 and petitioner no. 2 & 3 are widow and 2 daughters of late Shir Inder Singh, who died intestate in 2006. From his first wife he had two sons and a daughter respondent no. 3, 4, & 5 respectively.
After death of her husband petitioner no. 1 moved an application for mutation before the concerned tehsildar however the same was dismissed in the view of section 50 of DLR Act. Petitioner approached the concerned S.D.M of the area but her plea was not entertained. Further the petitioner filled a present case before the High Court.
LAW:
To apprehend the controversy relating to section 50 DLR Act and HSA it is important to emphasize relevant provisions of both the statutes. Section 50 of DLR Act is as under:
SECTION 50 of DLR Act: “General order of succession from males—Subject to the provisions of Sections 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below:
(a) Male lineal descendants in the male line of the descent………
Section 50 of DLR Act only consider that the male Hindu has primary right to succeed the agricultural land the said section is protected under section 4(2) of HSA which is a saving clause. Section 4(2) of HSA is as under:
SECTION 4(2) of HSA: “Overriding effect of Act—
(1) xxxxxxxxxxxx
(2) For the removal of doubts, it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.”
LEGISLATIVE DEVELOPMENTS:
DLR Act came into force in 20.07.1954. HSA Act came into force in 17.06.1956. The objective of both the statutes can be construed from its preambles. In para 5 and 7 court enunciated the objective of both the statutes as under:
5…. [a]n Act to provide for modification of Zamindari system so as to create a uniform body of peasant proprietors without intermediaries, for the unification of the Punjab and Agra systems of tenancy laws in force in the State of Delhi and to make provision for other matters connected therewith”.
7…. ‘[a]n Act to amend and codify the law relating to intestate succession among Hindus’.
In 1964 DLR Act was placed in 9th Schedule of the Constitution with Constitution 17th amendment Act. It is pertinent to read 9th Schedule with Article 31B of the Constitution. Article 31B precludes the court from checking the Constitutional validity of any statute which comes with in the ambit of 9th Schedule of the Constitution. Article 31B is as under:
“Art. 31B. Validation of certain Acts and Regulations—
Without prejudice to the generality of the provisions contained in Article 31 A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.”
AMENDMENT 2005:
HSA was amended in 2005 which came into force on 09.09.2005, by virtue of said amendment Act Section 4(2) of HSA was omitted. Whether the said amendment will have any impact on the DLR or not is the concerned issue after the said amendment. The said amendment Act also brought another significant change by appending section 6 of HSA which thereby gave coparcenary rights to daughter on the other hand DLR Act only compute male descendants.
ISSUES:
“Whether Section 50 of the DLR Act has been repealed by the Amendment Act inasmuch as by omitting Section 4(2) of the HSA, 1956, it has removed the immunity that the DLR Act had with respect to the laws of succession in respect of agricultural land? Also, if that be the case, do the petitioners, being female, now have the right to succeed to the disputed agricultural land?”
CONTENTION of petitioner:
It was contended by the petitioner that by 2005 amendment HSA has eclipsed the section 50 of DLR Act and now HSA will be applicable in respect of succession concerning all the properties including the agricultural land. Further it was pleaded that petitioner become coparcener in furtherance of new Section 6.
In para 17 petitioner emphasized as follows:
17……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 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 9.9.2005,…..
IMPLIED REPEAL OF SECTION 50:
In para 21 and 22 petitioner relied on Smt. Har Naraini Devi vs. Union of India, 162(2009) DLT 663: wherein court observed that DLR Act falls under 9th Schedule therefore same is covered under the immunity provided under Article 31B of the Constitution. The said law is beyond the challenge on the ground of infringement of rights conferred under Part III of Constitution.
In para 22 petitioner emphasized Article 31B ends with “subject to the power of any competent legislature to repeal or amend it” and further contended that parliament being competent legislature amended HSA in 2005 thereby omitted section 4(2) which impliedly repealed section 50 of DLR Act. Therefore same is liable to be quashed as section 4(2) was a saving clause which is no more after amendment.
CONTENTION of respondent:
Section 50 (Har Naraini Devi)
Respondent no. 3 to 5 rebutted that finding of Har Naraini Devi (supra) is applicable wherein it was held that section 50 of DLR Act is a special law cannot be assailed as the same placed in 9th Schedule and Article 31B saving the said provision from being challenged.
Schedule 7th of Constitution
Another contention on behalf of respondent is that 7th schedule of Constitution provides 3 lists based on which Union or State or both can ordain any law. List III is concurrent list wherein Entry 5 is “succession” Entry 6 is “transfer of property except agricultural land” on the other hand Entry 8 of List II which is a state list gives power to state legislature to enact laws concerning “land” including agricultural land. It was asserted that based on the abovesaid entries it is the state legislature which is competent to enact the laws concerning the “agricultural land”.
PRAYER:
This petition was filed by the petitioner seeking direction to set aside section 50 of DLR Act on the ground of violation of Article 14, 16 and 19 of the Constitution of India. It was also contended that Section 50 of DLR Act does not survive thereby become repugnant and repealed impliedly in furtherance of the 2005 amendment of HSA.
OBSERVATION:
In paragraph no. 28 court at the outset observed that petitioner is entitled to succeed the disputed agricultural land. Court concluded as under in para 28:
28…. 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).
In para 33 court held that the due to amendment in section 4(2) the overriding effect of DLR Act gets entrusted to HAS, the intent of parliament is clear form the said amendment of 2005.
Immunity under 31B:
Court observed that finding in Har Naraini Devi was that DLR section is not subjected to challenge as it is immune under Article 31B of Constitution. However, in the present case same is not applicable as in the present case section 50 of DLR Act is not assailed on the ground of violation of Article 14, 16 and 21. It is impugned based on the effect of amendment made in 2005 in provision of HSA.
FINDING:
In para no. 35 court gave following finding:
35. For the aforesaid reasons, we hold that the provisions of the HSA would, after the amendment of 2005, have overriding 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.
Read Further:
Har Naraini Devi and Another vs. Union of India and Others (2022) SCC Online SC 1265