HAR NARAINI DEVI & ANR VERSUS UNION OF INDIA & ORS.

HAR NARAINI DEVI & ANR VERSUS UNION OF INDIA & ORS.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 22957 OF 2017
HAR NARAINI DEVI & ANR …APPELLANT(S)
VERSUS
UNION OF INDIA & ORS. …RESPONDENT(S)
J U D G M E N T
Vikram Nath, J.
1. This civil appeal by the original writ petitioners before the
High Court, assails the correctness of the judgment and order
dated 11.09.2009 passed by the Division Bench of the Delhi High
Court dismissing Writ Petition (Civil) No. 2887 of 2008 whereby
challenge was made to declare Section 50(a) of the Delhi Land
Reforms Act, 19541 unconstitutional being ultra vires Articles 14,
15, 254 and 21 of the Constitution of India.
1 Hereinafter referred to as “1954 Act”
2
FACTS:
2. Genealogy (pedigree) relevant for the case is as follows:
From the above pedigree it is clear that the appellants are the
widow and daughter of Ishwar Singh whereas the contesting
respondent nos. 3 and 4 are the sons of Ishwar Singh. The dispute
relates to the agricultural property held by Mukhtiar Singh. He had
three sons viz Mahinder Singh, Jagdish Singh and Ishwar Singh.
All of them pre-deceased him. Mukhtiar Singh died on 06.06.1997
and his inheritance relating to the branch of Ishwar Singh was
succeeded by his grandsons (sons of Ishwar Singh i.e. Jaidev and
Amit - respondent nos. 3 and 4) under Section 50(a) of the 1954
Act. Revenue records were corrected accordingly.
3. It would be appropriate to reproduce Section 50 of the 1954
Shri Mukhtiar Singh
(Died On 06.06.1997)
Son (1)
Shri Mahinder Singh
(Died in 1975)
Son (2) Shri Jagdish
(Died in 1976)
1. Kuldeep( Son) 2. Kulbeer (Son)
Son (3) Ishwar
(Died in 1985)
Widow Daughter Son Son
(Petitioner No.1) (Petitioner No.2) Jaidev Amit
(Respondent No.3) (Respondent No.4)
3
Act:
“50. General order of succession from
males. - Subject to the provisions of Section 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:
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 low so ever 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, being 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) Brother, being the son of same father as
the deceased;
j) Unmarried sister;
k) Brother’s son, the brother having been
a son of the same father as the
deceased;
l) Father’s father’s son;
m)Brother’s son’s son;
n) Father’s father’s son’s son;
o) Daughter’s son.”
4
4. The appellants by way of a petition under Article 226 of the
Constitution of India challenged the validity of Section 50(a) of the
1954 Act as they were denied any rights in the inheritance along
with respondent Nos.3 and 4.
5. The relief as claimed before the High Court in the writ petition
is reproduced below:
“a) To declare clause (a) of S.50 of the Delhi Land
Reforms Act, 1954 unconstitutional being ultravires
Articles 14, 15, 254 and 21 of the Constitution of
India;
(b) To declare the Petitioners “bhumidhar” having
equal rights of succession at par with the respondent
Nos. 3-4 in the property inherited by them detailed in
Annexure P-3;
(c) To grant any other relief in the interest of justice.;
(d) To grant cost of litigation.”
6. The challenge before the High Court was on the grounds of:
(i) violation of Article 14; (ii) women being discriminated despite
world over the rights of women were being empowered; (iii) Hindu
Succession Act, 19562 would prevail over the 1954 Act.
7. Division Bench of the High Court considered the various
submissions advanced and placing reliance on the fact that 1954
2 Hereinafter referred to as the “1956 Act”
5
Act had been placed in the Ninth Schedule to the Constitution
much prior to the judgment in the case of Kesavananda Bharati
vs. State of Kerala3, and also in view of Article 31(B) of the
Constitution of India extending immunity to such legislation,
dismissed the writ petition by the impugned judgment dated
11.09.2009. Aggrieved by the same, the present appeal has been
preferred.
8. Initially, respondent Nos.3 and 4 had put in appearance. It is
thereafter an I.A. was filed by the Advocate on Record to seek
discharge from the case. Such I.A. was allowed on 05.05.2022.
Shri Anand Yadav, Advocate was appointed as Amicus Curiae to
assist the Court.
9. We may briefly note the submissions advanced by the learned
counsel for the appellants as also the learned Amicus.
Appellant’s arguments:
10. Briefly stated the following arguments were raised on behalf
of appellants:
a. Succession provided in 1956 Act will prevail over the
succession provided in 1954 Act in view of Article 254 of
3 1973 (4) SCC 225
6
the Constitution, as there is clear repugnancy.
b. Section 4(2) of the 1956 Act having been deleted by an
amendment in 2005, there would be no justification to
apply the provisions of succession given in the 1954 Act as
the same would now be governed by the 1956 Act.
c. After the judgement in the case of Vineeta Sharma vs.
Rakesh Sharma & Ors.4
, the repeal of Section 4(2) of 1956
Act would relate back being retrospective and also that the
amendment in Section 6 of 1956 Act would be held to be
retrospective.
d. The provisions of Section 50(a) of the 1954 Act are violative
of Articles 14 and 15 of the Constitution of India as there is
clear discrimination on the ground of sex.
e. Reliance was placed upon the judgment in the case of Babu
Ram vs. Santokh Singh and others5
for the proposition
that provisions of 1956 Act will apply.
4
(2020) 9 SCC 1
5
(2019) 14 SCC 162
7
Respondent’s (Amicus) arguments:
11. On behalf of the respondents, learned Amicus made the
following submissions, which are briefly recorded herein:
a. Sections 51 to 53 of the 1954 Act cannot be challenged
being violative of Articles 14 and 15 of the Constitution in
view of the Articles 31(A) and 31(B) of the Constitution and
the 1954 Act falling in the Ninth Schedule to the
Constitution since 1964.
b. The provisions in the 1954 Act are in consonance with the
settled succession of agricultural land throughout the
country for various reasons laid down in the preamble and
the Statement of Objects and Reasons of the statute.
c. Provisions of the 1954 Act are not at all affected by deletion
of Section 4(2) of the 1956 Act.
d. 1956 Act is a general law whereas 1954 Act is a special law
and therefore, 1954 Act will govern the succession in
respect of agricultural land.
e. The succession provided under the 1954 Act is a move
toward the Uniform Civil Code inasmuch as the succession
8
applies across the board to all land holders irrespective of
religion, caste or creed and personal laws of any religion do
not carve out any exception.
f. A settled law for decades should not be disturbed.
12. Before the High Court the validity of Section 50(a) of the 1954
Act was challenged on the ground that it ultra vires Articles 13,
14, 19, 21 and 254 of the Constitution.
13. In support of the submissions, the appellants who were the
petitioners before the High Court relied upon the judgments in the
cases of (i) Kesavananda Bharati (ii) Waman Rao and Ors. vs.
Union of India6 and (iii) I.R. Coelho (Dead) by Lrs. Vs. State of
Tamil Nadu & Ors.7
. The High Court dealt with the judgments in
detail and its ultimate analysis was that none of the judgments
relied upon were of any help to the appellants. The consistent
stand of this Court was that all the legislations included in the
Ninth Schedule to the Constitution before the Judgment in the
case of Kesavananda Bharati that is 24.04.1973, would stand
protected under Article 31B of the Constitution and, therefore, the
6 1981 2 SCC 362
7
(2007) 2 SCC 1
9
challenge to the validity of provisions of the 1954 Act must fail.
14. The reasoning given by the High Court, as stated above, is
the correct interpretation of the judgments of the Court referred to
above and as such does not warrant any interference. We may also
make a note that, before us learned counsel for the appellants has
neither raised this argument nor there is any challenge to the
aforesaid reasoning of the High Court. It may also be pertinent to
note that before the High Court other arguments were not
addressed. However, as the same have been raised, they are being
dealt with hereinafter.
15. We will now deal with the arguments raised by the counsel
for the appellants and the respondents in response thereto.
I. Repugnancy - Article 254 of the Constitution
16. Learned counsel for the appellants has vehemently urged
that the 1954 Act would be hit by Article 254 of the Constitution
for the reason that the 1956 Act is enacted by the Parliament
whereas the 1954 Act is a State Act. It is also submitted that the
1956 Act is a special law and the 1954 Act a general law.
10
17. Article 254 of the Constitution reads as follows:
“254. Inconsistency between laws made by
Parliament and laws made by the Legislatures of
States
(1) If any provision of a law made by the Legislature
of a State is repugnant to any provision of a law
made by Parliament which Parliament is competent
to enact, or to any provision of an existing law with
respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of
clause (2), the law made by Parliament, whether
passed before or after the law made by the
Legislature of such State, or, as the case may be,
the existing law, shall prevail and the law made by
the Legislature of the State shall, to the extent of the
repugnancy, be void
(2) Where a law made by the Legislature of a State
with respect to one of the matters enumerated in
the Concurrent List contains any provision
repugnant to the provisions of an earlier law made
by Parliament or an existing law with respect to that
matter, then, the law so made by the Legislature of
such State shall, if it has been reserved for the
consideration of the President and has received his
assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with
respect to the same matter including a law adding
to, amending, varying or repealing the law so made
by the Legislature of the State.”
18. The question of repugnancy arises only if both the Parliament
and the State legislature have made law with respect to any one of
the matters enumerated in the Concurrent list (List III). In the
present case two enactments of 1956 and 1954 are relatable to
11
Entries in List III and List II respectively. The relevant Entries in
List III is Entry Nos.5 and 7 whereas relevant Entry of List II is
Entry No.18. The said Entries are reproduced below:
“List II – State List
Entry 18: Land, that is to say, right in or over land,
land tenures including the relation of landlord and
tenant, and the collection of rents; transfer and
alienation of agricultural land; land improvement
and agricultural loans; colonization.
List III – Concurrent List
Entry 5: Marriage and divorce; infants and minors;
adoption; wills, intestacy and succession; joint
family and partition; all matters in respect of which
parties in judicial proceedings were immediately
before the commencement of this Constitution
subject to their personal law.
xxx xxx xxx
Entry 7: Contracts, including partnership, agency,
contracts of carriage, and other special forms of
contracts, but not including contracts relating to
agricultural land.”
19. Apart from the fact that a bare reading of Article 254 reflects
that it refers to repugnancy in law made with respect to matters
enumerated in the Concurrent list (List III), this Court has also
laid down that question of repugnancy would not come into
existence unless it is first established that both enactments are
under the Concurrent list (List III). In this respect it would be
12
appropriate to refer to the law laid down by this Hon’ble Court in
the case of M/s. Innoventive Industries Ltd. vs. ICICI Bank and
Ors.8
. It is held therein that the question of examining repugnancy
would not apply at all unless it is first established that both
enactments under the Central and the State are with respect to
matters enumerated under the Concurrent list (List III).
Consequently, it is submitted that Article 254 would have no
application to the present case at all. Paragraph 51 lays down the
propositions after discussing in detail the law on the point. For the
present case, the proposition 51.1 is relevant which reads as
follows:
“51. The case law referred to above, therefore, yields
the following propositions:
51.1. Repugnancy under Article 254 arises only if
both the Parliamentary (or existing law) and the
State law are referable to List III in the Seventh
Schedule to the Constitution of India.”
In the present case, 1954 Act is not referable to any matter
enumerated in List III but it is referable to Entry 18 of List II. Thus,
no question of repugnancy would arise in view of Article 254 of
the Constitution.
8
(2018) 1 SCC 407, page 450, para 50-51.
13
20. The other part of the argument relating to 1956 Act being a
special law and 1954 being a general law is completely
misconceived. In a series of judgments, not only of this Court but
also of different High Courts, it has been expressed that any State
enactment relating to Agricultural land tenures is a special law.
Reference may be had to a judgment of this Court in the case of
Parshanti Vs. Deputy Director of Consolidation9
.
II. Deletion of Section 4(2) of the 1956 Act:
21. Section 4(2) of the 1956 Act read as follows:
“4. Overriding effect of Act:
(1) ………………
(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.”
22. Till 2005, to be specific 09.09.2005, when the Hindu
Succession (Amendment) Act of 2005 was enacted, the aforesaid
provision remained on the statute. It is not in dispute that the
9
(1997) 11 SCC 157
14
property in question is agricultural property, and therefore, in
1997 at the time when Mukhtiyar Singh died, the devolution of
interest (inheritance) would be determinable on the said date, in
accordance with the law existing at that time. In 1997 Section 4(2)
of the 1956 Act, was very much on the statute, its subsequent
deletion would not have any impact on the rights of inheritance,
which had already accrued and crystallised, prior to the
amendment. Therefore, on facts deletion of Section 4(2) of the
1956 Act would not help the appellants.
23. It is well settled that all amendments are deemed to apply
prospectively unless expressly specified to apply
retrospectively or intended to have been done so by the
legislature. Reference may be had to the following decisions:
[L.R. Brothers Indo Flora Ltd. v. Commissioner of
Central Excise10; Hitendra Vishnu Thakur v. State of
Maharashtra11; Union of India v. Zora Singh12
.]
In the present case there is no such intention reflecting from the
amending Act.
10 (2020) SCC Online SC 705, para 27;
11 (1994) 4 SCC 602 para 26;
12 (1992)1 SCC 673, para 12;
15
24. By virtue of Section 6 of the General Clauses Act, the repeal
of an enactment would not affect the previous operation of such
an enactment. In Shree Bhagwati Steel Rolling Mills v. CCE13
,
this Court has held that repeal is to be treated similarly as an
omission and Section 6 of the General Clauses Act would apply
equally to an omission as it would apply to a repeal. On account of
Sections 6(b) and 6(c) of General Clauses Act, the omission of
Section 4(2) of 1956 Act cannot affect the previous operation of the
said Section 4(2). Paragraphs 12 and 13 of the aforesaid report are
reproduced below:
“12. From this it is clear that when Section 6 of the
General Clauses Act speaks of the repeal of any
enactment, it refers not merely to the enactment as
a whole but also to any provision contained in any
Act. Thus, it is clear that if a part of a statute is
deleted, Section 6 would nonetheless apply.
Secondly, it is clear, as has been stated by referring
to a passage in Halsbury’s Laws of England in Fibre
Board judgment, that the expression “omission” is
nothing but a particular form of words evincing an
intention to abrogate an enactment or portion
thereof. This is made further clear by the Legal
Thesaurus (Deluxe Edition) by William C. Burton,
1979 Edition. The expression “delete” is defined by
the Thesaurus as follows:
“Delete:- Blot out, cancel, censor, cross off, cross
out, cut, cut out, dele, discard, do away with, drop,
edit out, effect, elide, eliminate, eradicate, erase,
excise, expel, expunge, extirpate, get rid of, leave
13 (2016) 3 SCC 643, para 12.
16
out, modify by excisions, obliterate, omit, remove,
rub out, rule out, scratch out, strike off, take out,
weed, wipe out.”
Likewise the expression “omit” is also defined by
this Thesaurus as follows:
“Omit:- Abstain from inserting, bypass, cast
aside, count out, cut out, delete, discard, dodge,
drop, exclude, fail to do, fail to include, fail to insert,
fail to mention, leave out, leave undone, let go, let
pass, let slip, miss, neglect, omittere, pass over,
praetermittere, skip, slight, transire.”
And the expression “repeal” is defined as follows:
“Repeal:- Abolish, abrogare, abrogate, annul,
avoid, cancel, countermand, declare null and void,
delete, eliminate, formally withdraw, invalidate,
make void, negate, nullify, obliterate, officially
withdraw, override, overrule, quash, recall, render
invalid, rescind, rescindere, retract, reverse, revoke,
set aside, vacate, void, withdraw.”
13. On a conjoint reading of the three expressions
“delete”, “omit”, and “repeal”, it becomes clear that
“delete” and “omit” are used interchangeably, so
that when the expression “repeal” refers to “delete”
it would necessarily take within its ken an omission
as well. This being the case, we do not find any
substance in the argument that a “repeal” amounts
to an obliteration from the very beginning, whereas
an “omission” is only in futuro. If the expression
“delete” would amount to a “repeal”, which the
appellant’s counsel does not deny, it is clear that a
conjoint reading of Halsbury’s Laws of England and
the Legal Thesaurus cited hereinabove both lead to
the same result, namely, that an “omission’ being
tantamount to a “deletion” is a form of repeal.”
17
25. The deletion of Section 4(2) took place w.e.f 09.09.2005.
Therefore, the effect of the deletion can only be in respect of
successions which opened on or after 09.09.2005. This is because
under Section 6(b) and 6(c) of the General Clauses Act repeal
cannot affect the previous operation of any enactment so repealed
and cannot affect the previous operation of any enactment so
repealed and cannot affect any right which may have been
acquired or accrued. In the present case, it is to be held that
succession has opened prior to 09.09.2005, the rights of the
descendants in terms of Section 50 became crystallized on account
of the said Section read with Section 4(2) of the 1956 Act.
Therefore, the deletion of Section 4(2) cannot have retrospective
effect.
26. There is one more reason, why the existence of Section 4(2)
in the 1956 Act and its deletion will not have any impact in the
present case. The reason is that the 1954 Act, as held above is a
special law, dealing with fragmentation, ceiling, and devolution of
tenancy rights over agricultural holdings only, whereas the 1956
Act is a general law, providing for succession to a Hindu by religion
as stated in Section 2 thereof. The existence or absence of Section
4(2) in the 1956 Act would be immaterial.
18
III. Effect of the judgment given in the case of Vineeta Sharma:
27. The argument advanced by the learned counsel for the
appellants is that the applicability of amendment in Section 6 and
the deletion of Section 4(2) from the 1956 Act would have
retrospective effect, which is also of no help to the appellants. Once
we are holding that succession in the present case with respect to
the property in question is governed by the 1954 Act, any
amendment even if it has a retrospective effect in the 1956 Act will
have no bearing or impact on the provisions of succession
governed by the 1954 Act. Moreover, this Court in the judgment
of Vineeta Sharma has given retrospective application only to
Section 6 of the 1956 Act as amended in 2005. There is no
declaration regarding deletion of Section 4(2) being retrospective.
This argument, therefore, also fails.
IV. Gender bias/ women empowerment:
28. Once it is upheld that there can be no challenge to the 1954
Act as the said legislation is included in the Ninth Schedule of the
Constitution of India, this argument also has no legs to stand.
19
V. Effect of the judgment in the case of Babu Ram:
29. Reliance placed upon the judgment in the case of Babu Ram
is of no help to the appellant. The case of Babu Ram related to
State of Himachal Pradesh where there is no State enactment
legislated covering the matters mentioned in Entry 18 of List II that
is to say that the State of Himachal Pradesh has no local
enactment covering agricultural land tenures. It was in such
circumstances that this Court held that succession of agricultural
land would be governed by the 1956 Act. It would be worthwhile to
mention that in the judgment of Babu Ram itself this Court
clarified that had there been a state enactment covering the field
of Entry 18 List II of Seventh Schedule, the rights over agricultural
land would have been governed by the same. Paragraphs 21 and
22 which are relevant are reproduced hereunder:
“21. In the present case, it is nobody’s case that the
matter relating to succession to an interest in
agricultural lands is in any way dealt with by any
State legislation operating in the State of Himachal
Pradesh or that such legislation must prevail in
accordance with the principles under Article 254 of
the Constitution of India. The field is occupied only
by Section 22 of the Act insofar as the State of
Himachal Pradesh is concerned. The High Court
was, therefore, absolutely right in holding that
Section 22 of the Act would operate in respect of
succession to agricultural lands in the State.
20
22. Though, succession to an agricultural land is
otherwise dealt with under Section 22 of the Act, the
provisions of Section 4(2) of the Act, before its
omission, had made it clear that the provisions of
the Act would not apply in cases inter alia of
devolution of tenancy rights in respect of
agricultural holdings. Thus, the effect of Section
4(2) of the Act before its deletion was quite clear
that, though the general field of succession
including in respect of agricultural lands was dealt
with under Section 22 of the Act, insofar as
devolution of tenancy rights with respect to
agricultural holdings were concerned, the
provisions of Section 22 would be inapplicable. The
High Court of Bombay was, therefore, absolutely
right in its conclusion. However, with the deletion
of Section 4(2) of the Act, now there is no exception
to the applicability of Section 22 of the Act. But we
are not called upon to consider that facet of the
matter.”
30. For all the reasons recorded above, the appeal fails and is
accordingly dismissed. No order as to costs.
…..……..........................J.
[HEMANT GUPTA]
………….........................J.
[VIKRAM NATH]
NEW DELHI
SEPTEMBER 20, 2022. 

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