JOGINDER KOUR Vs. STATE OF J&K

JUDGEMENT

(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 (Ranajeet Singh). The petitioner being daughter of said Ranjit 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 01.09.2009, by the Court of learned District Judge, Jammu. Aggrieved of said order, Civil Revision No. 138/2009 titled Joginder Kour v. Satnam Singh and others was filed before this Court, wherein vide order dated 30.09.2009 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 07.05.1954. 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 came to be amended.

(2.) 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 07.05.1954. 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 07.05.1954.

(3.) The argument projected on behalf of the petitioner is that as Cabinet Order No.578-C of 1954 dated 07.05.1954 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.