Research › Search › Judgment

J&K High Court · body

2014 DIGILAW 170 (JK)

Joginder Kour v. State of Jammu & Kashmir

2014-04-11

TASHI RABSTAN

body2014
ORDER 1. Briefly stated, the facts of the case, as per this petition, are that one Lal Singh, a refugee from Pakistan was provided with land measuring 03 kanals, 16 marlas comprising under Khasra No. 331, land measuring 10 marlas comprising Khasra No. 332, land measuring 09 kanals and 09 marlas comprising khasra No. 96 situate at Digiana, Jammu. He had a son, namely, Ranjeet Singh and the assets of his father (Lal Singh) were devolved upon him Ranjeet Singh). The petitioner being daughter of said Ranjeet Singh, in terms of Sections 5 and 6 of the Hindu Succession Act, 1956 claims due share, which was to be devolved on her and other co-sharers in equal proportion after the death of her father. There has been protracted litigation between the petitioner and Respondent No. 2 and other co-sharers of the land in dispute, which came to be culminated into passing of order dated 1-9-2009, by the Court of learned District Judge, Jammu. 2. Aggrieved of said order, Civil Revision No. 138 of 2009 titled Joginder Kour vs. Satnam Singh and Others was filed before this Court, wherein vide order dated 30-9-2009 parties were directed to maintain status quo as on date. It is further averred that previously the allotment of land to the Displaced Persons Rules of 1954 were formulated vide Cabinet Order No. 578-C of 1954 dated 7-5-1954. Subsequently, SRO 739 dated 17-11-1976 came to be issued wherein sub-rules (2) and (3) of the Rule 15-B of the Rules (supra) came to be amended. 3. Now through the medium of writ petition-in-hand, the petitioner has essentially called in question the vires of Rule 15-B(2) of the Allotment of Land to the Displaced Persons Rules of 1954 promulgated vide Cabinet Order No. 578-C of 1954 dated 7-5-1954. Challenge to the Rule has been made on the ground that by excluding those who have died or left family on account of marriage or adoption is violative of Sections 5 and 6 of the Hindu Succession Act, 1956. The case set up by the petitioner is that if an allottee dies, his/her interest in the allotted land should devolve by way of succession as provided in Sections 5 and 6 of the Hindu Succession Act, 1956 and not as per Cabinet Order No. 578-C of 1954 dated 7-5-1954. 4. The case set up by the petitioner is that if an allottee dies, his/her interest in the allotted land should devolve by way of succession as provided in Sections 5 and 6 of the Hindu Succession Act, 1956 and not as per Cabinet Order No. 578-C of 1954 dated 7-5-1954. 4. The argument projected on behalf of the petitioner is that as Cabinet Order No. 578-C of 1954 dated 7-5-1954 being a piece of delegated legislation cannot run contrary to the statutory provisions of the Act of Legislature, i.e. Hindu Succession Act, therefore, is ultra vires. Further arguments put forth by learned counsel for the petitioner is that by excluding married daughter from succeeding to the interest of allottee in the land allotted is arbitrary and, therefore, is violative of Articles 14 of the Constitution of India as applicable to the State of Jammu and Kashmir. 5. On the other hand, learned counsel for the State has stated that going by the scheme of provision of Cabinet Order No. 578-C of 1954, it is abundantly clear that cabinet order was intended to rehabilitate displaced persons by allotting them State/evacuee land for agricultural purposes so as to provide subsistence to the displaced family. Learned counsel has further submitted that allotment to the ancestors of the petitioner was made in terms of the conditions laid down in the Cabinet Order No. 578-C of 1954, which was accepted by the petitioner, as such, she cannot now be allowed to turn around and say that the conditions contained in the impugned provision of Cabinet order aforesaid are either arbitrary or violative of provisions of Sections 5 and 6 of the Hindu Succession Act. 6. Respondent No. 2 has also filed objections taking the same stand as has been taken by State-respondent. 7. I have considered the submissions made on behalf of the parties and am of the considered view that State is correct in saying that there is strong presumption of constitutionality of any rule or law enacted by the Legislature and onus is on the person who contests its constitutionality. The petitioner has not been able to make out a case for striking down the impugned provision. The petitioner has not been able to make out a case for striking down the impugned provision. Argument of learned counsel for the petitioner that succession of the property allotted to a allottee should be governed by Sections 5 and 6 of the Hindu Succession Act also cannot be accepted for the reason that in terms of Cabinet Order No. 578-C of 1954, evacuee/State land is allotted to a displaced person who only enjoys right of use and occupation during subsistence of his/her allotment and does not acquire any ownership and proprietorship interest in the aforesaid land Cabinet order aforesaid provides mode and manner in which land of the allottee, who has died, would devolve. 8. In view of the definition of family contained in Explanation to Rule 2 of Cabinet Order No. 578-C of 1954 besides others unmarried children alone are included. By virtue of impugned SRO 739 dated 17-11-1976, sub-rule (2) of 15-B of Cabinet Order No. 578-C of 1954 was re-cast in the following manner : (2) If an allottee dies, his interest in the allotted land shall devolve on other members of this family in whose favour allotment of land has been originally made or regularized under these rules and on those who may have become members of the family by way of marriage, birth or adoption after such allotment excluding those who may have died earlier or may have left the family on account of marriage or adoption. 9. In view of the aforesaid amendment, allotment made in favour of allottee has to be read subject to the aforesaid Rule also. Going by the scheme of Cabinet Order and the object underlying, it can safely be said that the interest of allottee, who has died would devolve only on those members of the family, who are mentioned in the Cabinet order itself and not by the provisions of Hindu Succession Act particularly when allottee only holds the land for use and occupation and can only become occupancy tenant by operation of Section 3-A of Agrarian Reforms Act, 1976. 10. I do not find any arbitrariness or discrimination in excluding married daughter from amongst the members of the family, who are entitled to succeed to the interest of allottee in the evacuee/state land allotted to him/her neither arbitrary nor discriminatory. 11. 10. I do not find any arbitrariness or discrimination in excluding married daughter from amongst the members of the family, who are entitled to succeed to the interest of allottee in the evacuee/state land allotted to him/her neither arbitrary nor discriminatory. 11. In the supplementary affidavit, petitioner has contended that pursuant to Government Order No. 254-C of 1965 dated 7-7-1965, proprietorship rights have been conferred upon the allottees of the land without, however, specifically claiming as to whether the benefit of aforesaid Cabinet order was also conferred on the allottees of the land in question, nor has the petitioner placed on record any Mutation order to substantiate her plea. 12. On the other hand, learned counsel for the State has specifically stated that the land allotted to the ancestors of the petitioner was a evacuee/state land and no proprietorship rights could have been conferred in terms of Cabinet Order No. 254-C of 1965 dated 7-7-1965. There is nothing new in the supplementary affidavit which could change the complexion of the case. 13. Learned counsel for the petitioner has relied upon a judgment of this Court dated 18-4-2000 passed in OWP 946 of 1997 titled Surjeet Kour vs. State (unreported). The judgment relied upon by learned counsel is distinguished of the facts as in the aforesaid case proprietary rights in favour of allottees stood conferred in terms of Government Order No. 254-C of 1968 whereas in case-in-hand deceased was only allottee having no proprietorship interest in land. 14. Other judgment relied upon is also dated 24-1-2001 passed in case titled Sant Singh v. State and others (un-reported) wherein again issue was with regard to succession of the proprietary right, which have been conferred upon the allottee Shri Kashmir Singh in terms of Govt. Order No. 254-C of 1965 dated 7-7-1965. That being the position both the judgments relied upon by the petitioner are of no help to the petitioner. 15. In view of above discussion, I find no merit in this petition, accordingly, the same is dismissed along with connected CMA(s). 16. Through the medium of petition-in hand, petitioner has challenged order dated 1-9-2009 passed by learned Additional District Judge, Jammu. Petitioner had earlier filed Revision Petition, which was held not maintainable. It appears that after dismissal of the aforesaid writ petition by this Court vide order dated 27-8-2012, petitioner has filed instant petition. 16. Through the medium of petition-in hand, petitioner has challenged order dated 1-9-2009 passed by learned Additional District Judge, Jammu. Petitioner had earlier filed Revision Petition, which was held not maintainable. It appears that after dismissal of the aforesaid writ petition by this Court vide order dated 27-8-2012, petitioner has filed instant petition. The petitioner has not been able to make out a case for exercise of supervisory jurisdiction in terms of Section 104, besides the issue raised in this petition was directly or indirectly an issue involved in OWP No. 1298 of 2009, which stands dismissed. 17. In view of the dismissal of the OWP No. 1298 of 2009, this petition is also dismissed along with connected CMA(s), if any. Petition dismissed.