KAMLA NETI (DEAD) THROUGH LRS. versus THE SPECIAL LAND ACQUISITION OFFICER & ORS. on 9 December 2022

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order passed by the High Court of Orissa at Cuttack in LandFAcquisition Appeal No.79 of 2015 by which the High Court has dismissedthe said appeal preferred by the appellant herein and has confirmed theorder passed by the learned Reference Court, the original applicant haspreferred the present appeal.

2. The dispute is with respect to the apportionment of the amountof compensation with respect to the land acquired. The land originallyGstood recorded in the name of late Satyananda Negi a common ancestorof the appellant and the other coparceners. The said Satyananada diedleaving behind his two sons namely Chakradhar and Gajadhar.Chakradhar died leaving behind his four sons namely Chintamani,Parakhita, Basudev and Kulamani and one daughter Kamla (the appellantHherein). Similarly, Gajadhar died leaving behind his two daughters namely

Kumari and Kumudini. With respect to the land acquired, Khasra No.81,Mouza Kopsingha which originally stood recorded in the name of lateSatyananda Negi, the amount of compensation was settled atRs.5,97,35,754/- in favour of the respondent nos. 2 to 5 herein i.e.Kadamba Negi, Janhabi Negi, Basudev Negi, Lalita Negi and daughtersof Gajadhar i.e. Kumari Dhrua and Kumudini Majhi.

2.1 At the instance of the appellant claiming to be the daughter ofChakradhar and claiming 1/5[th] share in the amount of compensation areference was made to the Reference Court under Section 30 of theLand Acquisition Act. The Reference Court – the learned Senior CivilJudge, Sundargarh rejected the claim of the appellant/share of theappellant in the compensation, mainly on the ground that as the partiesbelong to Scheduled Tribe Community, the provisions of the HinduSuccession Act shall not be applicable and therefore the appellant beinga daughter shall not be entitled to the share in the amount of compensation.The order passed by the learned Reference Court denying the share inthe amount of compensation has been confirmed by the High Court bythe impugned judgment and order. Hence, the present appeal against theimpugned judgment and order passed by the High Court.

3. Learned counsel appearing on behalf of the appellant has heavilyrelied upon the decision of this Court in the case of Madhu Kishwar &Ors. Versus State of Bihar & Ors., (1996) 5 SCC 125 in support ofhis submission that the appellant being a daughter shall be entitled to theshare in the amount of compensation even applying the provisions of theHindu Succession Act.

3.1 It is vehemently submitted that as observed and held by thisCourt denial of right to succession to Scheduled Tribe women wouldamount to deprivation of the right to livelihood under Article 21 of theConstitution of India. It is submitted that as observed and held by thisCourt exclusive succession in the male line of heirs must remain insuspended animation till the immediate female relatives of the last maletenant continue to depend their livelihood on the land.

3.2 It is submitted that as observed and held by this Court in theaforesaid decision, to deny the equal right to the women/daughterbelonging to Scheduled Tribe would be gender-based discrimination andthe daughter cannot be denied the right in the joint family property inwhich all coparceners have the equal share.

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AMaking the above submissions and relying upon above decision, itis prayed to allow the present appeal and to hold that the appellant beingdaughter of one of the coparceners shall be entitled to 1/5[th] share in theamount of compensation.

4. Present appeal is vehemently opposed by Dr. KedarnathBTripathy, learned counsel appearing on behalf of the contestingrespondents.

4.1 It is submitted that in the present case the parties are membersof the Scheduled Tribe. The suit land belongs to one Satyananda Negiand after his death, the said land devolved upon his two sons ChakradharCand Gajadhar with the right of survivorship being available. The saidChakradhar passed away in the year 1948 before the commencementof Constitution of India and the Hindu Succession Act, 1954. That afterthe death of Chakradhar and his wife, his share in the property stooddevolved upon his four sons who held 1/4[th] share each by way ofsuccession. After more than 60 years of such succession by the fourDsons holding 1/4[th] shares each, their properties were acquired by theGovernment for establishment of Ultra Mega Power Project atBhedabahal, District Sundargarh. The compensation for the acquisitionof land was determined and the same was duly paid to the four sons –respondents herein being the owners of the property. It is submitted thatEthereafter the appellant herein filed an application before the L.A.O.,Sundargarh claiming their 1/5[th] share in the compensation being one ofthe descendants of the Satyananda Negi. That the matter was referredto the Court of Senior Civil Judge, Sundargarh in a matter of referenceunder Section 30 of the Land Acquisition Act made by the Special LandAcquisition Officer. The learned Reference Court dismissed theFapplication by holding that she is not entitled to claim any amount in theamount of compensation as being member of the Scheduled Tribe, theprovisions of Hindu Succession Act shall not be applicable and therefore,she would not have any right of survivorship in the joint family property.It is submitted that considering the provisions of the Hindu SuccessionGActmore particularly Section 2(2), the High Court has not committedany error.

4.2 It is submitted that the appellant is not entitled to receive anyshare in the suit property by virtue of Section 8 of the Hindu SuccessionAct. It is submitted that her father Chakradhar passed away way backHin the year 1948 before the enactment of the Hindu Succession Act, 1954 and even before the Constitution of India. It is submitted that apartfrom the fact that in view of Section 2(2) of the Hindu Succession Act,1954, the Hindu Succession Act, will not be applicable to the membersof the Scheduled Tribe, without any explicit clause in the Hindu SuccessionAct, the Hindu Succession Act cannot be given a retrospective operationto provide compensation to the appellant.

4.3 It is further submitted that as per Section 2(2) of the HinduSuccession Act, the Act shall not be applicable to the members of theScheduled Tribe. It is submitted that in the case of Labishwar Manjhivs. Pran Manjhi and Ors., (2000) 8 SCC 587, it is clearly held that ifthe members of the Scheduled Tribe follow customary and practices ofHinduism, then and then only the Hindu Succession Act would beapplicable. It is submitted that in the present case there is no evidenceon record to prove that the parties have Hinduised. It is submittedtherefore Hindu Succession Act shall not be applicable to the partiesherein.

4.4 It is further submitted that as held by this Court in a catena ofdecisions whenever there is a conflict between the law and equity, thelaw would prevail. Reliance is placed on the decision of this Court in thecase of B. Premananda and Ors. Vs. Mohan Koikal and Ors., (2011)4 SCC 266. It is submitted that as observed and held by this Court in thecase of J.P. Bansal vs. State of Rajasthan & Anr. AIR (2003) SC1405 and State of Jharkhand & Anr. Vs. Govind Singh, JT 2004(10) SC 349, it is for the legislature to amend the law and not the Court.

4.5 It is submitted that this Hon’ble Court on many occasionsdenied extending the benefits of Hindu Succession Act to the tribalcommunities unless the same has been notified by the CentralGovernment. Reliance is placed on the observations made by this Courtin the case of Madhu Kishwar (supra).

Making above submissions, it is prayed to dismiss the presentappeal.

5. Heard learned counsel for the respective parties at length.

6. A short question which is posed for consideration of this Courtis whether the appellant/petitioner being the daughter is entitled to theshare in the compensation with respect to the land acquired, onsurvivorship basis under the provisions of Hindu Succession Act? At theoutset, it is required to be noted that the appellant belongs to tribal A

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Acommunity and is a member of Scheduled Tribe. As per Section 2(2) ofthe Hindu Succession Act, the Hindu Succession Act will not be applicableto the members of the Scheduled Tribe. Therefore, as such as rightlyobserved by the High Court the appellant cannot claim any right of survivalunder the provisions of the Hindu Succession Act. Therefore, so long asSection 2(2) of the Hindu Succession Act stands and there is noBamendment, the parties shall be governed by the provisions of Section2(2) of the Hindu Succession Act. Therefore, though on equity we maybe with the appellant being daughter and more than approximately 70years have passed after the enactment of the Hindu Succession Act andmuch water has flown thereafter and though we are prima facie of theCopinion that not to grant the benefit of survivorship to the daughter in theproperty of the father can be said to be bad in law and cannot be justifiedin the present scenario, unless Section 2(2) of the Hindu Succession Actis amended, the parties being member of the Scheduled Tribe are governedby Section 2(2) of the Hindu Succession Act. It is observed and held bythis Court in the case of Mohan Koikal (supra) that when there is aDconflict between the law and equity, the law would prevail. Equity canonly supplement the law. There is a gap in it but it cannot supplant thelaw.

6.1 If the claim of the appellant on the basis of the survivorshipunder the Hindu Succession Act is accepted in that case it wouldEtantamount to amend the law. It is for the legislature to amend the lawand not the Court.

6.2 Now so far as the reliance placed upon the decision of thisCourt in the case of Madhu Kishwar (supra) by the learned counselfor the appellant is concerned, at the outset it is required to be noted thatFby the majority decision this Court refused to strike down the provisionsof Chota Nagpur Tenancy Act, 1908 which provided the succession toproperty in the male line of heirs and denying the right to Succession tothe daughter, on the touchstone of Article 14. However, this Court readinto the said provisions and observed and held that the intervening rightGof female dependents/descendants under Sections 7 and 8 of the Actshall be carved out, by suspending the exclusive right of the malesuccession till the female dependent/descendent chooses other meansof livelihood manifested by abandonment or release of the holding keptfor the purpose. This Court by observing so disposed of the writ petition.However, by disposing the writ petition this Court issued direction to theH

State of Bihar to comprehensively examine the question on the premiseof our constitutional ethos and the need voiced to amend the law.

6.3 This Court also directed to examine the question ofrecommending to the Central Government whether the CentralGovernment consider it just and necessary to withdraw the exemptionsgiven under the Hindu Succession Act and the Indian Succession Act inso far as the applicability of these provisions to the Scheduled Tribes inthe State of Bihar is concerned.

6.4 However, Mr. Justice K. Ramaswamy in his concurrentjudgment has further observed and held that the provisions of the HinduSuccession Act and the Indian Succession Act would apply to theScheduled Tribes, the general principles contained therein being consistentwith justice, equity, fairness, justness and good conscience would applyto them. Thereafter it is held that the Scheduled Tribe women wouldsucceed to the estate of their parent, brother, husband, as heirs by intestatesuccession and inherit the property with equal share with the male heirwith absolute rights as per the general principles of the Hindu SuccessionAct, 1956, as amended and interpreted by this Court. However, it isrequired to be noted that the same is minority view.

7. Under the circumstances in view of Section 2(2) of HinduSuccession Act and the appellant being the member of the ScheduledTribe and as the female member of the Scheduled Tribe is specificallyexcluded, the appellant is not entitled to any right of survivorship underthe provisions of Hindu Succession Act. No error has been committedby the High Court. The appeal therefore deserves to be dismissed and isaccordingly dismissed.

7.1 Before parting, we may observe that there may not be anyjustification to deny the right of survivorship so far as the female memberof the Tribal is concerned. When the daughter belonging to the non-tribal is entitled to the equal share in the property of the father, there isno reason to deny such right to the daughter of the Tribal community.Female tribal is entitled to parity with male tribal in intestate succession.To deny the equal right to the daughter belonging to the tribal even aftera period of 70 years of the Constitution of India under which right toequality is guaranteed, it is high time for the Central Government to lookinto the matter and if required, to amend the provisions of the HinduSuccession Act by which the Hindu Succession Act is not made applicableto the members of the Scheduled Tribe.

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A7.2 Therefore, though we dismiss the present appeal, it is directedto examine the question by the Central Government to consider it justand necessary to withdraw the exemptions provided under the HinduSuccession Act in so far as the applicability of the provisions of theHindu Succession Act to the Scheduled Tribes and whether to bring asuitable amendment or not. We hope and trust that the Central GovernmentBwill look into the matter and take an appropriate decision taking intoconsideration the right to equality guaranteed under Articles 14 and 21of the Constitution of India.

Nidhi Jain

C(Assisted by : Shashwat Jain, LCRA)

Appeal dismissed.

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