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PUNJAB & HARYANA HIGH COURT
S.S.Dulat, I.D.Dua and D.K.Mahajan JJ.
Pritam Kaur W/o S.Mukand Singh
Versus
State Of Pepsu
Letter Patent Appeal No. 22 of 1958,
Decided On : SEPTEMBER 27, 1957
CONSTITUTIONAL LAW - COURT OF WARDS ACT - SECTION 5 (2) (A) - ULTRA VIRES - ARTICLE 19 (1) (F) AND ARTICLE 15 OF THE CONSTITUTION - DISCRIMINATION ON GROUND OF SEX - REASONABLE RESTRICTION - DEPRIVATION OF PROPERTY - UNJUSTIFIED - NOTIFICATION UNDER SECTION 4 OF ORDINANCE I OF 2005 BK. - DEEMING PROVISION - PROPERTY TO BE HANDED OVER TO PETITIONER.
Fact of the Case:
The petitioner, one of the two widows of S. Mukand Singh, whose estate was placed under the supervision of the Court of Wards in 1928, filed a petition under Article 226 of the Constitution challenging the vires of Section 5 (2) (a) of the Pepsu Court of Wards Act on the ground that it was ultra vires Article 19 (1) (f) and Article 15 of the Constitution. The petition was dismissed by a single judge, and the petitioner filed an appeal under Clause 10 of the Letters Patent. The appeal was referred to a larger Bench.
Finding of the Court:
The Full Bench held that Section 5 (2) (a) of the Pepsu Court of Wards Act was ultra vires Article 19 (1) (f) and Article 15 of the Constitution. The Court held that the provision discriminated against women on the ground of sex alone and that it was not a reasonable restriction on the enjoyment of property. The Court also held that the notification issued under Section 4 of Ordinance I of 2005 Bk., which deemed the property to have been taken over by the Court of Wards under the Pepsu Act, was not a valid exercise of power and that the petitioner was entitled to possession of her property.
Issues: 1. Whether Section 5 (2) (a) of the Pepsu Court of Wards Act was ultra vires Article 19 (1) (f) and Article 15 of the Constitution? 2. Whether the notification issued under Section 4 of Ordinance I of 2005 Bk. was a valid exercise of power?
Ratio Decidendi: 1. Section 5 (2) (a) of the Pepsu Court of Wards Act was ultra vires Article 19 (1) (f) and Article 15 of the Constitution because it discriminated against women on the ground of sex alone and was not a reasonable restriction on the enjoyment of property. 2. The notification issued under Section 4 of Ordinance I of 2005 Bk. was not a valid exercise of power because it was not authorized by any law.
Final Decision: The appeal was allowed, the decision of the single judge was set aside, and it was declared that Section 5 (2) of the Pepsu Court of Wards Act was ultra vires the Constitution. The Court directed that the petitioner be put forthwith in possession of the property belonging to her, including both land and the income from the land which had accumulated in the hands of the Court of Wards.
D.K.Mahajan, J.
1. This is an appeal under Clause 10 of the Letters Patent and is directed against the order of Bishan Narain J. passed in a petition under Article 226 of the Constitution praying that the estate be released from the Court of Wards on the ground that Section5 (2) (a) of the Pepsu Court of Wards Act (No. 1 of 2008 Bk.) is ultra vires the Constitution of India. This appeal came up before me while sitting with the Chief Justice on the 13th of September, 1960, and it was ordered that it should be heard by a lager Bench. Consequently, this matter has been placed before the-Full Bench.
2. The petitioner-appellant is one Smt. Pritam Kaur widow of Mukand Singh, who was murdered on the nth of April, 1928. Mukand Singh at the time of his death was possessed of considerable landed and house property. He left landed and other property in various villages in the erstwhile Jind State. He was survived on his death by two widows, that is, Smt. Pritara Kaur and Smt. Pavittar Kaur and three daughters from Smt. Pavittar Kaur. At the instance of Smt. Pavittar Kaur the Judicial and Home Committee of the erstwhile State of Jind proposed on the ist of June, 1928, that the estate of Mukand Singh should be placed under the superintendence of the Court of Wards. This proposal was accepted by the Cabinet of that State vide its order dated the 5th of July, 1928, with the result that the estate of Mukand Singh was taken possession of by the Court of Wards Jind State.
3. After the independence of India, the Rulers of the various East Punjab States including the State of Jind entered into a covenant whereby these States formed themselves into a Union known as the Patiala and East Punjab States Union. In pursuance of this covenant. Ordinance No. 1 of 2005 Bk. (The Patiala and East Punjab States Union Administration Ordinance, 2005 Bk.) was promulgated. Section 3 of this Ordinance reads thus :
"3. As soon as the administration of any Covenanting State has been taken over by the Raj Pramukh as aforesaid, all Laws, Ordinances, Acts, Rules, Regulations, Notifications, Hidayats, Firmans-i-Shahi, having force of law in Patiala State on the date of commencement of this Ordinance shall, apply mutatis mutandis to the territories of the said State and with effect from that date all laws in force in such Covenanting State immediately before that date shall be repealed;
Provided that proceedings of any nature whatsoever pending on such date in the courts or offices of any such Covenanting State shall, notwithstanding anything contained in this Ordinance or any other ordinance, be disposed of in accordance with the laws governing such proceedings in force for the time being in any such Covenanting State."
According to this Ordinance after the 20th August, 1948, all Jind laws had to come to an end and the Patiala laws were to become applicable. (See in this connection Section 1 and the preamble to the Ordinance). Thus after the 20tb of August, 1948, the Court of Wards Jind State could not retain possession of the property of the petitioner and her co-widow. This Ordinance was replaced by the Patiala and East Punjab States Union General Provisions. (Administration) Ordinance, 2005 (XVI of 2005 Bk.). Section 3 of the Ordinance No. 16 of 2005 Bk. Is in these terms :
"3.(i) As from the appointed day, all laws and rules, regulations, bye-laws and notifications made thereunder, and all other provisions having the force of law, in Patiala State on the said day shall apply, mutatis mutandis, to the territories of the State and all laws in force in the other Covenanting States immediately before that day shall cease to have effect : Provided that all suits, appeals, revisions, applications, reviews, executions and other proceedings, or any of them, whether civil or criminal or revenue pending in the Courts and before authorities of any Covenanting State shall, notwithstanding anything contained in this Ordinance, be disposed of in accordance with the laws
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