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Kesar Devi Vs. Nanak Singh - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 518-D of 1956
Judge
Reported inAIR1958P& H44
ActsPunjab Pre-emption Act, 1913 - Sections 11, 15 and 16; Constitution of India - Articles 14, 19(1) and 19(5); Hindu Succession Act, 1956 - Sections 4
AppellantKesar Devi
RespondentNanak Singh
Appellant Advocate A.N. Grover, Adv.
Respondent Advocate J.L. Bhattia, Adv.
Cases ReferredRangnath v. Baburao
Excerpt:
.....against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....after the constitution but even the sale was executed after that.(4) the suit relates to urban immoveable property, which is a houses in the act, although right of pre-emption in regard to agricultural land or village immoveable property or urban immoveable property is dealt with in section 4, but section 15 provides for the persons in whom right of pre-emption vests in respect of sales of agricultural land and village immoveable property and section 16 relates to persons in whom right of pre-emption vests in regard to urban immoveable property. those two sections proceed on entirely different basis and considerations and, therefore, each provides a separate list of persons entitled to enforce a right of pre-emption in the preferential order stated in the section.the act has.....
Judgment:

Mehar Singh, J.

This judgment will dispose of Civil Revision No. 518-D of 1956, against the order, dated November 26. 1956, of the Subordinate Judge, 2nd Class, of Delhi, rejecting a plea in defence by the defendant, who is the petitioner, that Section 16 of the Punjab Pre-emption Act, 1913, (hereinafter to be referred to as the Act), is ultra vires the provisions of the Articles 14 and 19 (1) (f) of the Constitution of India, and Civil Miscellaneous Application No. 1224-D of 1956 under Article 228 of the Constitution of India for withdrawal of the case from the trial Court for determination of the question of law as to the interpretation of the said Articles of the Constitution.

(2) On January 31, 1956, the defendant purchased the house in suit and Nanak Singh Plaintiff, who is the respondent in this Court in both the cases, has brought a suit to preempt that sale on the grounds:

(1) That he is a co-sharer of the vendors in a part of the property sold, that is, in the staircase, the courtyard, deorhi, entrance, chabutra and latrines,

(2) that the sale is of a property having a staircase common to the property owned by him,

(3) that the sale is of a property having an entrance from a street common with the property owned by him,

(4) that the property owned by him and the property purchased by the defendant are contiguous.

The defendant has taken a number of defences to the suit and the one defence that is for consideration in these petitions is whether Section 16 of the Act is ultra vires of the provisions of Articles 14 and 19(1) (f) of the Constitution.

(3) The learned trial Judge has relying on Uttam Singh v. Kartar Singh, AIR 1954 Punj 55 (FB) (A), and Audh Behari Singh v. Gajadhar Jaipuria, AIR 1954 SC 417 (B), decided this question against the defendant- It is against that interlocutory order that the revision petition is directed and the petition under Article 228 of the Constitution is, as pointed out, for withdrawal of the case to this Court and for determination of the said question. The first of the two cases relied upon by the learned trial Judge relates to the right of pre-emption with regard to agricultural land and obviouslyhas no application in the present case. In thesecond case, though the decision has been given after the Constitution, the suit had actually been decided by the trial Judge long before the constitution came into force. Even that case has no application to the facts of the present case, in which not only the suit has been instituted after the Constitution but even the sale was executed after that.

(4) The suit relates to urban immoveable property, which is a houses In the Act, although right of pre-emption in regard to agricultural land or village immoveable property or urban immoveable property is dealt with in Section 4, but Section 15 provides for the persons in whom right of pre-emption vests in respect of sales of agricultural land and village immoveable property and Section 16 relates to persons in whom right of pre-emption vests in regard to urban immoveable property. Those two sections proceed on entirely different basis and considerations and, therefore, each provides a separate list of persons entitled to enforce a right of pre-emption in the preferential order stated in the section.

The Act has made classification on the basis of agricultural land and village immoveable property as a separate subject matter falling within the scope of Section 15 and the urban immoveable property falling within the scope of Section 16. The classification is intelligible in this that the basis for the right of pre-emption in the former case is different from the basis of the right of pre-emption in the latter case. In the Punjab State v. Inder Singh. AIR 1953 Punj 20 (C), and AIR 1954 Punj 55 (FB) (A), the following five objects of the law of pre-emption, in so far as it relates to agricultural land and village immoveable property, have been enumerated.

(1) To preserve the integrity of the village community.

(2) To implement the agnatic theory of law.

(3) To avoid fragmentation of holdings.

(4) To reduce the chances of litigation and friction and to promote public order and domestic comfort.

(5) To meet the needs of a particular society at a particular stage of the evolution. In Gobind Dayal v. Inayatullah, ILR 7 Ail. 775 (D), at pages 787, 799, 801, and 803, Mahmood J. has pointed out that the objects of the right of; pre-emption in regard to urban immoveable property are.

(a) the quiet enjoyment of his own immoveable property by the pre-emptor, and

(b) the prevention of intrusion of strangers to obviate inconvenience or disturbance which would arise by their introduction.

As the objects to be secured by the right of preemption in regard to either class of property are not the same, the legislature has proceeded on the classification of the properties as above giving in each case a separate list of persons who are, according to law, entitled to enforce a right of pre-emption in preference to each other and in preference to a stranger. It is clear that the classification is based on an Intelligible differentia which distinguishes one type of property from other type of property and further that the differentia has a rational relation to the objects behind the right of preemption with regard to each type of property in as much as the right is secured to set of persons in each case having regard to the object underlying the right.

This classification fulfils the criterion laid down by their Lordships of the Supreme Court in Bidi Supply Company v. Union of India, (S) AIR 1956 SC 479 (E). So that upon the basis of this classification provisions neither of Section 15 nor of Section 16 can be impugned as being ultra vires Article 14 of the Constitution. But the learned counsel for the petitioner urges that in Delhi State by Section 189 of the Delhi Land Reforms Act (Delhi Act No. VIII of 1954) right of pre-emption in regard to agricultural land has been abolished and he contends that to uphold such a right in regard to urban immoveable property in these circumstances, is in contravention of Article 14, for he considers that there is an unjustifiable discrimination between urban immoveable property and what might be described as non-urban immoveable property in as much as right of pre-emption is left intact in regard to the former class of properties whereas it has been abolished in regard to the latter class of properties.

The argument is not sound for the simple reason that classification or discrimination has not resulted on account of Section 189 of the Delhi Land Reforms Act, 1954, but it already existed in the Act itself and it has been based on intelligible differentia which has reasonable relation to the object of the right conferred by the statute. It has not been contended by the learned counsel for the petitioner that there is any questionable discrimination in the application of the provisions of Section 16 to the same class of properties to which it applies.

This contention on behalf of the petitioner has no force. The right of pre-emption in regard to urban immoveable! property is a right, according to Section 7 of the Act, based on custom. The learned counsel for the petitioner refers to Section 4 of the Hindu Succession Act (Act No. XXX of 1956) and points out that by that section custom, in so far as it concerns Hindu Law, has mostly been abolished and to maintain a right of pre-emption according to custom under the Act would be to apply custom with a discrimination in this that while it continues to apply in the case of right of pre-emption to urban immoveable property, it has practically ceased to apply to the subjects covered by the Hindu Succession Act, 1956.

The last named Act does not purport to abolish custom in the abstract, it only abolished custom, subject to its own provisions, in so far as Hindu Law is concerned. This does not create any discrimination in the application of custom in circumstances exactly similar. Rules1 of custom vary not only according to the subject matter to which they apply but also according to the locality and the tribe. If custom with regard to one aspect of law is abolished that does not mean that its continuance with regard to the other aspects of law is a discrimination that is inconsistent with the provisions of Article 14.

As a matter of fact, in so far as the question of the right of pre-emption is concerned, even in the Hindu Succession Act 1956, Section 22 provides for preferential right to acquire property in certain cases so that the very Act upon which the learned counsel places reliance gives recognition to a statutory right of pre-emption and the right of pre-emption in regard to urban immoveable property under the Act is also a statutory right of pre-emption though it is based on the proof of custom as to the existence of the right.

This argument based on Section 4 of the-Hindu Succession Act, 1956, does not in the least show that there is any contravention of the provisions of Article 14 of the Constitution because-the right of pre-emption under the Act in regard-to urban immoveable property still continues to exist. The Hindu Succession Act, 1956, relates to a subject matter which is obviously quite different from the subject with which the-Act deals. So even this contention on behalf of the petitioner has no substance.

(5) It has then been strenuously urged that, right of pre-emption is a restriction on the fundamental right of the petitioner to acquire, hold and dispose of property within the scope of Article 19(1) (f) of the Constitution. There Is no doubt that right of pre-emption operates as a restriction upon the right of the owner of the property to dispose of the same and at the same time it operates adversely to the vendee's right to acquire such property. In Dhani Nath v. Budhu 136 Pun Re 1894 (F). Sir Meredyth Plowden pointed out at page 511, that the owner of land, subject to the right of preemption, is restricted in the claim of the pre-emptor and he is not at full liberty to transfer to whomever he pleases. Similarly in ILR 7 All 775 (D), at page 804, Mahmood J also refers to thf! restrictions or qualifications, because of the rights of pre-emption, operating in derogation of the vendor's absolute right to sell his property.

It is obvious that the right of pre-emption restricts the rights of the owner to dispose of his property as he pleases and the rights of the vendee to acquire the property. Article 19 of the Constitution is immediately attracted, but according to Sub-article (5) of that very Article what is to be seen is whether those restrictions are reasonable restrictions on the exercise of the right to acquire, hold and dispose of property within the scope of Article 19(5). It has already been pointed out that in ILR 7 All 775 (D), Mahmood J. has referred to the objects behind the right of pre-emption in regard to urban immoveable property. Those objects are-

(i) securing of quiet enjoyment of his own property by the pre-emptor, and

(ii) exclusion of strangers to obviate the in-convenience or disturbance which would arise by their introduction.

The learned Judge further points out at page 814 the consequences of such intrusion or introduction of a stranger. He observes-

'The intrusion of a stranger as a co-sharer must not only give rise to inconvenience, but disturb domestic comfort, if not, as in some cases, lead to breach of the public peace.'

A restriction placed to secure such objects and to avoid such consequences appears to me to be on the face of it a restriction in the interests of the general public and consequently within the scope of Sub-article (5) of Article 19. Section 16 of the Act Provides -

'16. The right of pre-emption in respect of urban immoveable property shall vest--Firstly, in the co-sharers in such property, if any.Secondly, where the sale is of the site of the building or other structure, in the owners of such building or structure,Thirdly, where the sale is of a property, having a staircase common to other properties, in the owners of such properties,Fourthly, where the sale is of property having a common entrance from the street with other properties, in the owners of such properties,Fifthly, where the sale is of a servient property, in the owners of the dominant property and vice versa,Sixthly, in the persons who own immoveable property contiguous to the property sold.'

The section actually deals with two classes of persons. The first class of persons dealt with are those who jointly use part or whole of the property and the second class is of persons who hold their property independently but claim the right on the ground of contiguity. In the first class of persons preference is given to co-sharers and the others come according to the importance of the use of the property by them. But one thing is clear that in this class intrusion or introduction of a stranger would lead to the same consequences as pointed out by Mahmood J. whether the pre-emptor is a co-sharer or belongs to any other category in this class.

The reason is the fact that the property is in common use of the pre-emptor and the vendor, whether as a whole or only in part, and the introduction of a stranger in such property would more often than not lead not merely to inconvenience but to breach, of the peace. Thus the provisions of Section 16 with regard to first five classes of persons, who are entitled to enforce a right of pre-emption in regard to urban immoveable property, provide a reasonable restriction on the right to acquire, hold and dispose of property and that is in the interest of general public. In their cases the restriction being reasonable, the provisions of Section 16 are saved by Sub-article (5) of Article 19.

Same consideration cannot apply to the sixth class of persons referred to in Section 16 for their right is based not on any common use of the property but merely on the ground of contiguity. Such persons occupy or are in possession independently of their properties without interference by their adjoining or contiguous neighbour. So if property contiguous to them is sold then that does not directly or immediately interefere with their quiet enjoyment of their own property or their privacy. In such a case apparently there is no basis for any breach of the peace. Thus the right of pre-emption in their favour cannot be said to secure public order and to be in the interest of general public. In so far as this class of persons are concerned the restriction imposed by the right of pre-emption in their favour cannot be described reasonable restriction within the scope of Sub-article (5) of Article 19.

It is in view of similar considerations that in Panch Gujar Gaur Brahmans v. Amar Singh. AIR .1954 Raj 100 (FB) (G), Siremal v. Kantilal AIR 1954 Raj. 195 (H), Shankerlal v. Poonam-chand, AIR 1954 Raj. 231 (I), Rangnath v. Baburao, (S) AIR 1956 Hyd. 120 (J), and Babu-lal v. Gowardhandas, (S) AIR 1956 Madh. B. 1 (K), the learned Judges have consistently maintained that the right of pre-emption on the basis of vicinage or contiguity is void as infringing Article 19(1) (f) of the Constitution but not so on the other grounds for those come within the scope of Sub-article (5) of that Article.

(6) In consequence the order of the learned trial Judge under revision is interfered with only to this extent that the right of pre-emption claimed by the plaintiff, under clause 'sixthly' of Section 16 of the Act is a right which is not consistent with the provisions of Article 19(1) (f) of the constitution and as such cannot be enforced, but right of pre-emption based on the remaining five clauses of that is a right not in contravention of Article 19 and it can be enforced by persons referred to in those clauses. This also disposes of the petitioner under Article 228 of the Constitution and the record will now be sent back to the trial Court for disposal of the case in conformity with this judgment and according to law.

(7) Falshaw, J.

I agree.


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