Case Summary
| Citation | Nirmala & Ors. v. Government of NCT of Delhi170 (2010) DELHI LAW TIMES 577 (DB) |
| Keywords | central law, local law, sec 4 HSA |
| Facts | The widow and the two minor girls of Late Shri Inder Singh were the petitioner in the present case which was for the dispute of a landholder. Preceding his marriage with Nirmala, Late Shri Inder Singh was involved with one more woman Nihali Devi with whom he had two boys and a little girl.Inder wedded Nihali Devi in 1997, after the death of his first spouse in 1995. All 3 Respondent present are the offspring of Late Shri Inder Singh and his first spouse.After the death of Inder Singh in 2006, Nirmala moved an application before the concerned Tahsildar in 2007, to change the mentioned disputed agrarian land for the petitioners, the Tahsildar however considering Section 50 of the Delhi Land Reforms Act didn’t allow it. Nirmala on such reaction called in for a Panchayat conference of the town dated 12.02.2007, settled by the Panchayat it was ruled that against the offspring of Nihali Devi that the share in the disputed farming land possessions claimed by Inder Singh should be divided 1/3rd among the children of Nirmala.This decision gave Nirmala the ownership of a certain portion. On the other hand, children of Nihari Devi made the lives of Petitioner miserable by making deterrents and not permitting the petitioners to work in their fields properly.Nirmala then knocked the doors of the concerned S.D.M and Deputy Commissioner in March 2007, but her application was not entertained. Then a writ petition was documented in August 2007. |
| Issues | Even if Section 50 of the Delhi Land Reforms Act has been repealed by the Amendment Act because of letting go of Section 4(2) of the Hindu Succession Act, 1956. In this particular case, do the petitioners presently have the option to succeed in the disputed rural land being female? |
| Contentions | |
| Law Points | The assurance or safeguard from obliteration which sub-section (2) gave having been taken out, the arrangements of the HINDU SUCCESSION ACT would have a superseding impact even regarding the arrangements of the DELHI LAND REFORMS ACT. It was, in fact, less an instance of suggested repeal however one where the security from repeal/revocation which until recently existed has now been eliminated.The exclusion of sub-section (2) of Section 4 was a lot of a conscious act of Parliament. The intention was clear. Parliament didn’t need this assurance given to the DELHI LAND REFORMS ACT and other comparative laws to continue. The outcome was that the DELHI LAND REFORMS ACT gets consigned to a place of subservience to the HINDU SUCCESSION ACT to inconsistency in the arrangements of the two acts.The court said that they have seen that the resistance allowed under Article 31B was subject to the force of any competent law-making body to repeal or correct the secured Act (for this situation, the DELHI LAND REFORMS ACT). Parliament has enacted the HINDU SUCCESSION ACT and the Amendment Act of 2005 and there was no test to Parliament’s competency.They effectively showed the issues concerning how the impact of exclusion of sub-section (2) of Section 4 of the HINDU SUCCESSION ACT was to annul the arrangements of the DELHI LAND REFORMS ACT to inconsistency with the arrangements of the HINDU SUCCESSION ACT.Unmistakably, the invulnerability under Article 31B was not a sweeping resistance and was subject to the force of any competent governing body to repeal or correct the secured Act. This was exactly what Parliament has done. In this manner, the contention was raised in the interest of Respondent Nos. 3 to 5 was plainly indefensible. |
| Judgement | The Court held that, after the amendment of 2005 the arrangements of the Hindu Succession Act would have more impact over the Sections of Delhi Land Reforms Act (in this particular case Section 50). Which means the rule of Hindi Succession Act would rule over any given rule passed under the Delhi Land Reforms Act. Hence, the petitioners were truly qualified to succeed as the Hindu Succession Act, 1956 in the disputed agrarian land as far. |
| Ratio Decidendi & Case Authority |
Full Case Details
BADAR DURREZ AHMED, J. – 1. Through this writ petition, the petitioners are 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. 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.
2. The petitioners herein are the widow (petitioner no. 1) and two minor daughters (petitioner
Nos. 2 and 3) of Late Shri Inder Singh, the owner of the disputed land, who died intestate on
15.12.2006. Prior to his marriage with petitioner No.1 (Nirmala), Late Shri Inder Singh was
married to another lady called Nirmla (shown as Nihali Devi in the counter- affidavit), with
whom he had two sons and a daughter. He married petitioner no. 1 in 1997, after the death of his
first wife in 1995. Respondent Nos. 3, 4 and 5 are the children of Late Shri Inder Singh and his
first wife.
3. Late Shri Inder Singh had bhumidhari rights in respect of agricultural land to the extent of
1/6th share in Khata No. 136/132 consisting of Kh. No. 30/24 (4-16) and Kh. No. 31/13/1/2 (1-8)
ad-measuring 6 Bighas 4 Biswas and 1/6th share in Khata No. 78/76 consisting of Kh. No. 35/1
(4-16), 35/2 (4-16), 9/1 (3-14), 10 (4-15), 27 (0-3), 36/4/2 (3-10), 5/2 (4-4), 6 (4-16), 7/2 (2-12),
14/1/2 (1-4), 54/45 (0-18) and 51 (0-2) ad-measuring 35 Bighas 10 Biswas. The total agricultural
land ad-measuring 41 Bighas 14 Biswas (hereinafter referred to as the disputed agricultural land)
is situated in the revenue estate of village Tazpur Kalan, Delhi.
4. After the death of Late Shri Inder Singh on 15.12.2006, petitioner no. 1 moved an application
before the concerned Tehsildar on 05.02.2007, to mutate the above-mentioned disputed
agricultural land in favour of the petitioners, but he refused to do so in view of Section 50 of the
DLR Act. Being aggrieved by the decision of the Tehsildar, petitioner no. 1 called a meeting of
the Panchayat of the village and in that meeting dated 12.02.2007, it was unanimously decided by
the Panchayat as well as by respondent Nos. 3-5, that the petitioners be allotted 1/3 rd share in the
disputed agricultural land holdings owned by the deceased Shri Inder Singh. In pursuance of this
decision, the petitioners were given possession of their share. But even then, respondent Nos. 3-5
were creating hindrances and not allowing the petitioners to work in their fields properly.
Petitioner no. 1 also approached the concerned S.D.M and Deputy Commissioner of the area in
March 2007, but her application was not entertained. Hence, the present writ petition was filed in
August 2007.
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5. Before we consider the issue at hand, it would be pertinent to set out the legislative
developments. The DLR Act came into force on 20.07.1954. Its preamble states that it is “[a]n
Act to provide for modification of zamindari system so as to create an 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”.
Section 50 of the Act provided that only male members of a family had the primary right of
succession to agricultural land; it excluded female members from succeeding to such land
holdings when male lineal descendants were available. Section 50 of the DLR Act is reproduced
hereunder:
“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 son howsoever low 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;
(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) Brothers son’s son;
(o) Father’s father’s son’s son;
(p) Daughter’s son.”
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6. Thus, clause (a) of Section 50 requires that whenever a male bhumidhar or asami dies, the
property shall first devolve upon the male lineal descendants in the male line of descent,
howsoever low to the exclusion of female descendants. Given the fact that the chances of there
being no male lineal descendants at all are extremely low, the property in all likelihood will not
devolve upon the female descendants in any case.
7. The Hindu Succession Act, 1956 (hereinafter referred to as „the HSA‟) was passed and came
into force on 17.06.1956. The preamble of the HSA emphasized that it was ‘[a]n Act to amend
and codify the law relating to intestate succession among Hindus’. However, Section 50 of the
DLR Act was protected by Section 4(2) of the HSA which made it clear that nothing contained in
the HSA would affect any provision of law for the time being in force which provided for the
prevention of fragmentation of agricultural holdings or for the fixation of ceiling or for the
devolution of tenancy rights in respect of such holdings. (Refer Section 4(2) of the Hindu
Succession Act, 1956).
8. In 1964, the DLR Act was placed in the Ninth Schedule of the Constitution of India (Entry 61),
by virtue of the Constitution (Seventeenth Amendment) Act, 1964, with effect from 20th June
1964. Article 31B of the Constitution provides that no Act that has been placed in the Ninth
Schedule can be the subject matter of challenge on the ground that it is inconsistent with or takes
away or abridges any of the rights conferred by the provisions of Part III of the Constitution.
(Refer Article 3IB of the Constitution of India)(emphasis supplied).
9. In 2005, the HSA was amended by Parliament by passing the Hindu Succession (Amendment)
Act, 2005 (hereinafter referred to as „the Amendment Act‟), which came into force on
09.09.2005. By virtue the Amendment Act, Section 4(2) of the HSA was omitted.
10. In the backdrop of this legislative history, the main questions that arise for our consideration
in this case is:-
“Whether Section 50 of the DLR Act has been repealed by the Amendment Act in as much 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?”
11. The main contention of the counsel on behalf of the petitioners was that due to the omission
of Section 4(2) of the HSA, the rule of succession as contained in Section 50 of the DLR Act has
been eclipsed and thus, after 09.09.2005, only the rule of succession provided under the HSA (as
amended) is applicable to Hindus in respect of all properties in India, including agricultural land.
Also, because of the substitution of the old Section 6 of the HSA by the new one, the petitioners
have become co- parceners of disputed agricultural land along with the sons of Late Shri Inder
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Singh, and thus all the petitioners have acquired rights, equal to those of respondent Nos. 3-5, in
the property in question.
12. The learned counsel for the petitioners submitted that due to the omission of Section 4(2) and
substitution of the old Section 6 of the HSA by the new one, by virtue of the Amendment Act, the
State law contained in Section 50 of the DLR Act has become repugnant to the Union law
contained in Sections 6, 8 and 9 of the HSA and the said Section 50 of the DLR Act is thus void.
14. The learned counsel for the petitioners placed reliance on three judgments. The first case is
that of Ram Mehar v. Mst. Dakhan: 1973 (9) DLT 44. The main question for consideration
before the Division Bench in that case was as follows:
“5. The main question to be determined in this case is solely a question of law. Either the
rule of succession in the Delhi Land Reforms Act or the rule of succession in the Hindu
Succession Act governs the parties. If the Hindu Succession Act applies, then the plaintiff
and the defendant have to succeed to their late father as co-heirs each entitled to an equal
share. If the Delhi Land Reforms Act is to apply then the succession has to be according
to the provisions of Section 50 of that Act. According to that Section an unmarried
daughter succeeds to a Bhumidar only if there is no superior heir. On the other hand, a
married daughter does not succeed at all. The defendant is a married daughter and,
therefore, she does not have any right to succeed her father. The Delhi Land Reforms Act
is an earlier Act and the question whether it has been expressly or impliedly overruled is
to be determined by reference to Section 4 of the Hindu Succession Act, 1956.”
15. The Division Bench in the said case observed:
“5. The language of Section 4(1)(b) shows that any law in force immediately before the
commencement of the Act shall cease to apply to Hindus if it is inconsistent with the
provisions of the Act. The provisions of the Delhi Land Reforms Act are inconsistent
with the Hindu Succession Act as has already been stated before. Thus, if there was no
sub-section (2) this question could have had to be decided against the plaintiff. However,
sub- section (2) states that the Act will not affect the provisions of any law which is in
force if it provides 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.
The question of succession, therefore, depends wholly on whether the Delhi Land
Reforms Act is a law which prevents the fragmentation of agricultural holdings or fixes
ceilings on agricultural holdings or provides for the devolution of tenancy rights in
respect of such holdings.”
(emphasis supplied)
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16. The Division Bench in the case of Ram Mehar (supra) contended that the DLR Act is a law
which prevents the fragmentation of agricultural holdings, etc. and held that:-
“19. In view of the conclusion that the Delhi Land Reforms Act provides for the
prevention of the fragmentation of agricultural holdings and also, at the material time
fixed ceilings on agricultural holdings and also dealt with the devolution of tenancy rights
on such holdings, it must be held that this law is saved by section 4(2) of the Hindu
Succession Act and is not repealed by the provisions of the Hindu Succession Act. This
would mean that the rule of succession governing Bhumidars is to be found in section 50
of the Delhi Land Reforms Act and not in the Hindu Succession Act, 1956.”
(emphasis supplied)
17. 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 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.
18. For persuasive values, the learned counsel for the petitioners relied on a decision of a learned
single Judge of this court in the case of Smt. Mukesh &Ors. v. Bharat Singh &Ors.: 2008 (149)
DLT 114. In that case, 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
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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.”
(emphasis supplied)
19. In the above-mentioned case, the owner of the agricultural land holdings had expired on
10.06.1993 and thus it was on that date that succession to his property opened. As per the law
then applicable, succession was in favour of the sons. Since the Amendment Act could not be
read retrospectively, the appeal in the case of Mukesh v. Bharat Singh (supra) was dismissed.
20. 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.
21. The third decision referred to by the learned counsel for the petitioners was that of the present
Bench itself in the case of Smt. Har Naraini Devi and Another v. Union of India and Others
(W.P. (C) 2887/2008) decided on 11.09.2009. In that case, this court had agreed with the
contentions of the respondents that since the DLR Act had been placed in the Ninth Schedule of
the Constitution of India in 1964, it was covered by the immunity provided in Article 31B, and
was thus beyond the pale of challenge on the ground of violation of any of the rights conferred in
part III of the Constitution.
22. 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
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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.
23. Apart from this, the learned counsel for the petitioners submitted that the facts of the present
case differed from that of Smt. Har Naraini Devi’s case (supra) inasmuch as in that case the owner
of the disputed property died on 06.06.1997, that is, prior to the coming into force of the
Amendment Act in 2005, and, thus, before Section 4(2) of the HSA had been omitted. In the
present case, succession opened on 15.12.2006, after Section 4(2) of HSA had been omitted with
effect from 09.09.2005. Also, in the case of Smt. Har Naraini Devi (supra), the only challenge
against Section 50 of the DLR Act was on the ground that it was violative of the fundamental
rights as given in the Constitution of India however in the present case the challenge is also on the
ground of it being repealed by a subsequent statute.
24. In response to the above arguments, the learned counsel for the respondent Nos. 3 to 5 also
relied strongly on the decisions of Ram Mehar (supra) and Smt. Har Naraini Devi (supra). It 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″.
25. It was submitted that the DLR act is a special enactment enacted especially to deal with
agricultural land and for the prevention of fragmentation of agricultural holdings, for the fixation
of ceilings and for the devolution of tenancy rights in respect of such holdings and would,
therefore, prevail despite the Amendment Act omitting Section 4(2) of the HSA. 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.
26. Another contention of the learned counsel for the said respondents was that in the Seventh
Schedule of the Constitution of India which prescribes the three lists of subjects on which the
Union, State or both legislatures can make laws respectively, Entry 5 of List III, which is the
Concurrent list, includes „succession‟ and Entry 6 includes „transfer of property except
agricultural land‟. On the other hand, List II, which is the State List, at Entry 18, has „Land‟
including every form of land whether agricultural or not. Thus it was submitted by the learned
counsel for the respondents that this clearly shows the intention of the legislature to allow only
the State to enact laws regarding agricultural land.
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27. 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.
28. It is in the light of these arguments, that the questions posed in paragraph 10 above need to be
answered. 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.
29. Section 4(2) as it existed prior to its omission in 2005 declared that nothing contained in the
HSA would 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. This Court, in the case of Ram
Mehar (supra) found that the DLR Act was such a law and because of Section 4(2), the rule of
succession laid down in the DLR Act would be unaffected by the provisions or rule of succession
prescribed under HSA. It was only because of Section 4(2) that this Court, in Ram Mehar (supra)
decided that the applicable rule of succession would be as provided under the DLR Act. Had
Section 4(2) not been there, Ram Mehar (supra) would have been decided differently and the rule
of succession given in the HSA would have been applicable.
30. It is necessary to examine Section 4 of HSA which stipulates that the HSA is to have an overriding effect. (Refer Section 4(1) of the HSA)
31. 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
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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.
32. It is only because of sub-section (2) of Section 4 of the HSA that the operation and
effectiveness of the provisions of the DLR Act was saved inasmuch as it was declared that
nothing in the HSA shall be deemed to affect the provisions of any law for the time being in force
providing for (1) the prevention of fragmentation of agricultural holdings or (2) for the fixation of
ceiling or (3) for the devolutions of tenancy rights in respect of such holdings. Since the DLR Act
was held to be such a law, its provisions, which included Section 50, were unaffected by the
enactment of the HSA. It is apparent that while there was a general abrogation / repeal of laws –
personal, customary and statutory – to the extent they were inconsistent with the provisions of the
HSA, the provisions of certain laws like the DLR Act were specifically saved or excluded from
the general abrogation / repeal.
33. 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. It is, in fact, not so much a case of implied repeal but one where the protection from repeal /
abrogation which hitherto existed has now been removed. The omission of sub-section (2) of
Section 4, by virtue of the amendment of 2005 is very much a conscious act of Parliament. The
intention is clear. Parliament did not want this protection given to the DLR Act and other similar
laws to continue. The result is that the DLR Act gets relegated to a position of subservience to the
HSA to the extent of inconsistency in the provisions of the two acts.
34. We shall now deal with the contention of the learned counsel for the respondent Nos. 3 to 5
that in view of the decision of this Court in Smt Har Naraini Devi (supra), Section 50 of DLR Act
cannot be the subject matter of challenge because of Article 31B of the Constitution and because
the DLR Act had been placed in the Ninth Schedule to the Constitution in 1964. It is true that in
Smt Har Naraini Devi (supra), we had concluded that Section 50(a) of the DLR Act could not be
challenged because of Article 31B but, we must not forget that in that case, the challenge was on
the ground of alleged violation of Articles 14, 15 and 21 of the Constitution. Here, the challenge
is also based on an amendment of the statute. We have seen that the 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
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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.
35. 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 InderSingh‟s share, in favour of the petitioners and respondent
Nos. 3, 4 and 5 as per the HSA.
36. The writ petition is allowed to the aforesaid extent. The parties are left to bear their respective
costs.
