Prakash Narain, J.
(1) This second appeal is directed against the judgment and decree of the Senior Subordinate Judge. Kangra at Dharamsala. whereby the appellants' appeal against the dismissal of their suit turn possession based on a right of pre-emption was dismissed by the learned Senior Subordinate Judge although he accepted their appeal in respect of special costs that were originally awarded against the plaintiffs,
(2) The facts of the case briefly stated are that 8 Kanals and 11 Marias of land situate in village Bankhar, Tehsil Hamirpur were sold by Gainda and Shiv Rain to the respondents herein on 26-5-1959 for Rs. 3,000.00. The appellants contended that they being co-sharers of the land had a preferential right to purchase the land and so claim it by pre-emption. It was further contended that appellant no. 1. Chiraga. was a tenant of the land in dispute under appellant no. 2. Captain Rajinder Singh, who was the mortgagee of the entire Khata having obtained the mortgagee rights from the predesessor-in-interest of the vendors and so had a preferential right of pre-emption being a tenant under the vendors. The respondents had contested the suit and had denied that the plaintiffs had any right of pre-emption under the law of pre-emption as in force in the Kangra District.
(3) The learned Subordinate Judge framed the following issues arising out of the pleadings of the parties:---
1. Whether the plaintiffs have a superior right pre-emption O.P.P. 2. Whether the plaintiffs have locus standi O.P.P. 3. Whether the suit is barred by limitation? O.P.D. 4. Whether the price was fixed in good faith or paid O.P.D. 5. What was the market price at the time of sale O.P.P. 6. Whether the plaintiffs have waived their right 7. Relief.
(4) On 13-8-1960 the learned Subordinate Judge ordered that Issues No. 1 to 3 be decided first as preliminary issues. After hearing the parties he decided issues 1 and 2 against the present appellants and decided Issue No. 3 in their favor. In consequence of his decision on Issues 1 and 2. the learned Subordinate Judge ordering the plaintiffs to pay Rs. 200.00 as special costs under section 35-A. Civil Procedure Code, dismissed their suit. The appeal preferred by the appellants to the Court of the Senior Subordinate Judge, Kangra was also dismissed whereupon the appellants preferred a second appeal and that is how the matter has come up for hearing before me.
(5) At the very outset it may be slated that the pre-emptive right claimed by the appellants in the plaint on the basis of tenancy was nto pressed before me. All that has been agitated is that the appellants right to pre-empt as co-sharers should be upheld.
(6) CHIRAGA. plaintiff No. 1. died during the pendency of the second appeal but his legal representatives were nto brought on record. Accordingly. Civil Miscellaneous Petition No. 123 of 1968 was moved in this Court by the respondents praying that the appeal having abated the same should be dismissed. This application was, however, nto seriously pressed before me in asmuch as the learned counsel for the respondents conceded that appellant No, 2. Captain Rajinder Singh. was a son of Chiraga and in that view of the matter it was nto necessary to bring the other legal representatives of Chiraga on record. Furthermore, it may be mentioned that both Chiraga and Captain Rajinder Singh. the two original plaintiffs, claimed independent rights to pre-empt and either of them could have brought the suit for pre-emption. Even if one of them has died the suit does nto fail by reason of that death as the surviving plaintiff's right to pre-empt was an independent right and in that view of the matter at least his appeal subsists. Accordingly. Civil Miscellaneous Petition No. 123 of 1968 is dismissed and it is held that the appeal has nto abated.
(7) Before the learned Senior Subordinate Judge no arguments were advanced against the finding of the learned Subordinate Judge on the basis of the right of a co-sharer to pre-empt a sale in view of the existence of Notification No. 4662 dated 6-3-1916 whereby the right of co-sharers to pre-empt a sale was taken away in the Kangra District. In this Court, however, Mr. Rajinder Sachar, the learned counsel for the appellant, has urged that (a) the notification No. 4662 dated 6-3-1916 issued by the then Provincial Government under the provisions of section 8(2) of the Punjab Pre-emption Act, 1913 became a dead letter on the coming into force of the Punjab Pre-emption (Amendment) Act. 1960, (b) that even if it is held that the notification continued in force it was ultra virus Article 14 of the Constitution of India and so liable to be struck down. and (c) that section 8(2) of the Punjab Pre-emption Act. 1913 was ultra virus Article 14 of the Constitution and any notification issued there under would have to be struck down in asmuch as the statutory provision itself was vocative of Article 14 of the Constitution.
(8) Before I proceed to examine the contentions raised by Mr. Rajinder Sachar it will be advantageous to read the relevant provisions of the Punjab Pre-emption Act. Section 15 of the Punjab Pre-emption Act. 1913, prior to its amendment in 1960. read as under :-
'SUBJECTto the provisions of section 14, the right of pre-emption in respect of agricultural land and village immovable property shall vest- (a) Where the sale is by a sole owner or occupancy tenant or. in the case of land or property jointly owned or held. is by all the co-shares jointly, in the persons in order of succession, who but for such sale would be entitled on the death of the vendor or vendors to inherit the land or property sold: (b) where the sale is of a share out of joint land or property, and is nto made by all the co-sharers jointly:- Firstly, in the lineal descendants of the vendor in order of succession; Secondly, in the co-sharers. if any. who are agnates in order of succession; Thirdly, in the persons, nto included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold: Fourthly, in the co-sharers.' Section 8 was in the following terms :- '8(1) Except as may otherwise be declared in the case of any agricultural land in a notification by the Provincial Government, no right of pre-emption shall exist within any cantonment. (2) The Provincial Government may declare by notification that in any local area with respect to any land or property or class of land or property or with respect to any sale or class of sales, no right of preemption or only such limited right as the Provincial Government may specify, shall exist.' In 1916 in pursuance of the powers vested in the then Provincial Government under section 8(2). a notification was issued which reads as under :- In the District of Kangra. the right of pre-emption in respect of agricultural land and village immovable property shall be limited: (1) in the case of a sale falling under section 15(a) to the persons mentioned in the said clause; (2) in the case of a sale falling under section 15(b) to the persons mentioned in sub-clauses firstly, secondly and thirdly of the said clause. The persons mentioned in sub-clause fourthly of clause (b) and in clause (c) of section 15 shall nto exercise any right of pre-emption in respect of sales described in this notification.'
(9) The result of the above notification was that no right of preemption could be exercised by co-sharers in respect of a sale made in the District of Kangra for land covered by section 15(6). The Punjab Pre-emption (Amendment) Act, 1960 added section 31 to the original Act whereby it was provided that no Court shall pass a decree in a suit for pre-emption whether instituted before or after the commencement of the amending Act of 1960 which was inconsistent with the provisions of the amending Act. This amending Act substituted the original section 15 by a new section the relevant portions whereof read as under:-
'15(1)The right of pre-emption in respect of agricultural land and village immovable property shall vest- (a) where the sale is by a sole owner :- First, in the son or daughter or son's son or daughter's son of the vendor; Secondly, in the brother or brother's son of the vendor: Thirdly, in the father's brother or father's brother's son of the vendor; Fourthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof; (b) where the sale is of a share out of joint land or property and is nto made by all the co-shares jointly:- First, in the sons or daughters or son's sons or daughter's son of the vendor or vendors : Secondly, in the brother's or brothers' sons of the vendor or vendors: Thirdly, in the father's brothers or father's brother's sons of the vendor or vendors; Fourthly, in the other co-sharers; Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof: (c) where the sale is o.f land or property owned jointly or is made by all co-shares jointly;
(10) Mr. Sachar urges that in view of section 15 of the Act of 1913 being substituted by the new section in 1960. the notification of 1916 becomes a dead letter in asmucli as on a reading of section 31 as added by the amending Act of 1960 the notification issued earlier would cease to be in consonance with the provisions of the amending Act. To my mind, the argument is fallacious. The right to pre-empt a sale must exist at the time when the impugned sale takes place, at the time when a suit to pre-empt is filed and when the decree is to be passed. If the right to pre-empt- does nto exist at amy of these three stages a suit for pre-emption would nto He. In the present case the impugned sale took place on 24-8-1958 and the sale-deed was registered on 26-5-1959. So at the time when sale took place and the sale deed was registered, in view of the notification mentioned hereinbefore, the vendors and the ve,ndees had an unfettered right to sell or purchase the pro- perty. There was no right in the co-sharers to challenge the sale and set up a preferential right to pre-empt at that time. Even if it be assumed that such a right for co-sharers stood revived on account of the Amending Act of 1960 the present appellant can- nto take advantage of the provisions of the Amending Act as that would be in derogation of the unrestricted rights of the vendors and the vendees at the time when the sale actually took place. The first contention of Mr. Sachar, thereforee, has no force.
(11) There is no doubt that prior to the coming into force of the Constitution of India, the notification of 1916 could be validly issued by the then Provincial Government under the provisions of section 8(2) of the Punjab Pre-emption Act. 1913. The ques- corporation that arises is whether by virtue of the adoption of the Cons- titution the said notification became illegal and unenforceable in view of the provisions of Articles 13 and 14 of the Constitu- corporation of India. The argument of the learned counsel for the appellant is that Article 14 of the Constitution of India guaran- tees that the State shall nto deny to any person equality before the law or the equal protection of the laws within the territory of India. Co-sharers had a right to pre-empt sales in all areas where the Punjab Pre-emption Act was in force but co-sharers in the Kangra District were denied that right by virtue of the said notification which amounts to discrimination and so. being vocative of Article 14 of the Constitution must be struck down. Prima jacie, the right to pre-empt itself is a right in derogation of the Provisions of Article 19(1)(f) of the Constitution of India. The validity of the Punjab Pre-emption Act, 1913 has, however, been judicially upheld by the Supreme Court of India in Ram Sarup v. Munshi and others. The notification of 1916 issued under this Act cannto be regard as vocative of Article 14 of the Constitution unless it is shown that it has been issued without any sanction of law or that the law under which it is issued is itself vocative of the provisions of the Constitution.
(12) The effect of the notification of 1916 after the promulgation of the Constitution of India was that the restrictions placed by the Punjab Pre-emption Act. 1913. which but for its reasonableness could otherwise be regarded as vocative of Article 19(1)(f) of the Constitution did nto exist in the Kangra District and the citizen's rights became in consonance with Article 19(1)(f). In other words, qua the co-sharers the existence of the notification of 1916 placed the vendors and the vendees in a position where their rights could be exercised in consonance with the freedom to hold and dispose of property guaranteed by the Constitution. further, the power to exempt being there by virtue of section 8(2) of the Punjab Pre-emption Act. the power could be validly exercised. The law of pre-emption being a reasonable law to preserve the integrity of the village and the village community it was turn the Government concerned to decide how that object could well be achieved and to that end exclude co-shares while preserving the agnatic rule of succession. The classification resulting from the issue of the notification could be geographically motivated and is nto arbitrary or shown to be without rational basis. The equality contemplated by Article 14 cannto be stretched to mean that people of all districts must be treated the same way. Circumstances may be different in different districts and the equality clause cannto mean that in spite of differing circumstances the classification could nto be made. The second contention of Mr. Sachar has also. thereforee, to be rejected.
(13) Mr. Sachar laid great stress on his contention that section 8(2) of the Punjab Pre-emption Act, 1913 itself was ultra virus of the Constitution in asmuch as it lays down no guiding principles turn the State Government to issue notifications and gives uncanalized power to the Executive to issue notifications to the effect that no right of pre-emption shall exist in respect of any local area or any land or any property or class of land. or property or even an individual sale at its own sweetwill. This according to the learned counsel, gives delegated powers of legislation to the Executive without any guide-lines and so the section must be struck down.
(14) Mr. Sachar first relied on a decision of the Supreme Court in Bhau Rum v. Baij Nath Singh and others. This case was cited by the learned counsel only for the purpose of showing that a right in a co-sharer to pre-empt has been upheld by the Supreme Court. There is no doubt that if a statute gives that right to a co-sharer the right has to be upheld on the basis of the rule laid down by the Supreme Court, but then what we are concerned with is whether the right can be taken away by a valid provision of law.
(15) The learned counsel urged that in order to uphold the validity of section 8(2,) of the Punjab Pre-emption Act, .1913 it must be established that the power given to the State Government to issue notifications has certain guide-lines enacted by the Legislature so that the power is nto wrongly exercised or mis-used. He relied on the decision of the Supreme Court in Messrs, Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh and others to support his contention that where a power is granted without any guide-lines by the Legislature such power has to be struck down. In my opinion, the ratio of the decision in Dwarka Prasad's case is nto attracted in the present case. The Supreme Court in that case was considering the provisions of the U.P. Coal Control Order, 1953 issued under the provisions of the Essential Supplies Act, 1946. The Control Order was assailed on the ground that its provisions vest unlettered and unguided discretion in the licensing authority or the State Coal Controller in the matter of granting or revoking licenses, in fixing prices of coal and imposing conditions upon the traders; and those arbitrary powers could nto only he exercised by the officers themselves but could be delegated at thir option to any person they like. Construing the various provisions of the Control Order, their Lordships of the Supreme Court struck down its provisions on two grounds, viz., (a) that legislation which arbitrarily or excessively invades the right cannto be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in reasonableness; and (b) that on a reading of the provisions of the Control Order it was apparent that an unrestricted power had been given to the State Controller to make exemptions, and even if he acts arbitrarily or from improper motives, there was no check over it and no way of obtaining redress thereby making the provision unreasonable. It was further observed that no rules had been framed and no directions given to regulate or guide the discretion of the licensing officer and that practically the Order commits to the unrestrained will of a single individual the power to grant, withhold or cancel licenses, In any way he chooses and there is nothing in the Order which could, ensure a proper execution of the power or operate as a check upon injustice that might result from improper execution of the same. Some of the provisio of the Control Order were accordingly struck down. Apart from the fact that this was a case in which question of issuing or nto issuing licenses etc. was under consideration, in my opinion, there are sufficient guidelines for the exercise of powers under section 8(2) of the Punjab Pre-emption Act to be found in the statute to which I will advert later and so this decision does nto help the appellant.
(16) Reliance was next placed by Mr. Sachar on the decision of the Supreme Court in the case of Hamdard Dawakhana and another v. The Union of India and others where in while construing the power conferred on the State Government to add to the schedule of the Drugs and Magis Remedies (Objectionable Advertisements) Act, 1954. it was held that the words 'or any other disease or condition which may be specified in the rules made under this Act' in -section 3(d) of that Act were liable to be struck down as they conferred uncanalised and uncontrolled power on the Executive without the Parliament providing for any criteria or standards or principles on which a particular disease or condition was to be specified in the sechedule. In consequence, the schedule itself was struck down. In that case it had been urged that section 3(d) of that Act give powers of delegated legislation as opposed to conditional legislation without any guide-lines and so the provision was invalid. The Supreme Court struck down one clause of the section as conferring uncanalised and uncontrolled powers on the Executive. Relying on this case Mr. Sachar urged that section 8(2) gives unguided and uncanalised powers of delegated legislation to the Executive. In order to appreciate this argument the distinction between delegated legislation and conditional legislation must first be understood. As was observed by J. L. Kapur J. in the above-noticed case of Humdard Dawakhana :
'THEdistinction between conditional legislation and delegated legislation is this. that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective, and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend. Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed, it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation.'
(17) In Mohmedalli and others v. Union of India and another the Supreme Court referred to its earlier decision in the case of Humdurd Dawakhana and held while construing the provisions of the Employees' Provident Funds Act. 1952 as follows:-
'IT is clear that the last mentioned case illustrates the rule that the question whether or nto a particular piece of legislation suffers from the vice of excessive delegation must be determined with reference to facts and circumstances in the background of which the provisions of the statute impugned had been enacted. If. on a review of all the facts and circumstances and of the relevant provisions of the statute, the Court is in a position to say that the legislature had clearly indicated the underlying principle of the legislation and laid down criteria and proper standards but had left the application of those principles and standards to individual cases in the hands of the executive, it cannto be said that there was excessive delegation of powers by the legislature. On the other hand. if a review of all those facts and circumstances and the provisions of the statute, including the preamble, leaves the Court guessing as to the principles and standards, then the delegate has been entrusted nto with the mere function of applying the law to individual cases, but with a substantial portion of legislative power itself. Applying those principles which are now well established by quite a number of decisions of this Court, can it be said in the instant case that the legislature had nto indicated clearly the principles underlying the legislation and the standards to be applied ' In our opinion, the answer must be in an emphatic 'No'.'
(18) Again, the Supreme Court in Jan Mohammad Noor Mohammad Bagban v. The State of Gujarat and another. while construing the provisions of the Bombay Agricultural Produce Markets Act. 1939 observed as follows :-
'The argument that the authority conferred upon the Director is wide and arbitrary, because no principles . are indicated lor guidance has no force. The Director is appointed by the State Government to exercise such powers and perform such functions and duties as are conferred or imposed on him by or under the Act, and the exercise of the powers and the performance of the duties is for the purpose of regulating the purchase and sale of agricultural produce and thereby doing away with malpractices in the trade. The preamble to the Act and the scheme of the Act clearly indicate that the powers conferred upon the Director are to be exercised for the purpose of regulating buying and selling of agricultural produce and for that purpose to establish markets for sale and purchase of agricultural produce. The powers under section 6 are to be exercised after giving an opportunity to persons interested o raise objections or to make suggestions to the proposed introduction of control on sale and purchase of agricultural produce. It is only after the objections and suggestions are received and considered by the Director in the light of the object and purpose of the Act, and he is satisfied that it is in the interest of the producer and the general public that there should be regulation of the trade in agricultural produce in the specified area that he may proceed to declare the market area.'
(19) Applying all these principles laid down by the Supreme Court to the provisions of the Punjab Pre-emption Act, 1913 there is no doubt that the validity of section 8(2) must be upheld. The power to exempt any particular area, land or transaction has been vested in high authority and it cannto be assumed that it would be misused. Secondly, the provisions of the Act itself lay down a sufficient guide-line for the Executive to exercise the power of exemption. In this connection, reference may be made to sections 3(5), 5, 8(1) and 9 of the Punjab Pre-emption Act which expressly exclude certain sales with regard to which no right to pre-empt exists. On a reading of the preamble and the various provisions it is clear that the scheme of the Act is to give the right of pre-emption in regard to sales and then to exclude such a right in regard to defined sales. In my opinion, this would afford sufficient guidance to the Executive for the exercise of the sowers of exemption. So even if the powers given under secion 8(2) of the Act of 1913 be regarded as delegated power of egislation it must be held that sufficient guide-lines have been provided by the legislature for the exercise of that power. I am Certified in taking this view by a decision of Harbans Singh J. in Oakkar Singh and another v. Baggu Singh and others.
(20) Apart from the. fact that power granted if of delegated legismaon has sufficient guide-lines, in my view, this power is really put of delegated legislation but conditional legislation on the of the observations of J. L. Kapur J. in the case of Hamdard Dawakhana and re-affirmed by the Supreme Court in Mohumed alli's case. The external authority has been given power here of the time and manner of carrying the legislative purpose into effect and also determining the area to which the various provisions are to extend or nto to extend. It was on the same ratio that the Supreme Court upheld the provisions of the Bombay Agricultural Produce Markets Act in the case of Jan Mohammad Noor Mohammad Bagban. The principle is by now well established that the legislature cannto delegate its essential legislative function and that it must lay down the legislative policy and principle and must afford guidance for carrying out the said policy before it delegates its subsidiary powers in that behalf as was observed by the Supreme Court in Harishankar Bagla and another v. The State of Madhya Pradesh and Vasanlal Maganbhai Sanjanwala v. The State of Bombay.
(21) The various Rent Restriction Acts, like the East Punjab Urban Rent Restriction Act, 1949, have provisions regarding exemption similar to the Punjab Pre-emption Act. Section 3 of the last mentioned Act gave power to the State Government to direct that all or any of the provisions of the Act shall nto apply to any building or rented land or any class of buildings or rented land. The provision was challenged as being ultra virus Article 14 of the Constitution by one Sadhu Singh. Holding that the provision was intra virus a Bench of the Punjab High Court in Sadhu Singh v. The District Board, Gurdaspur observed that section 3 of the East Punjab Urban Rent Restriction Act (3 of 1949) cannto be struck down as offending Article 14 of the Constitution. It cannto be disputed that section 3 is so wide that the power conferred by it on the State Government to exempt particular building or class of buildings from the operation of the Act can be abused and the door is left open for discrimination. But that, by itself, is nto a ground to strike down section 3 when in fact the power has nto been abused. If in a given case it is so abused, the Courts will undoubtedly strike it down.
(22) It was further observed that the East Punjab Urban Rent Restriction Act is an exception to the general law of landlord and tenant. Whenever the power of exemption under section. is exercised, the building or class of buildings exempted cease to be governed by the Act and would be governed by the genera law. Thus, the power of exemption conferred by section 3 merely to restore the applicability of the general law by takir hamaway the exception to it created by the special provision. In the comview of the matter, it cannto be said that section 3 confers adduce legislative power. The Bench decision in this case was uph by the Supreme Court by its judgment dated 29-10-1968 give on C.A. No. 2524 of 1966, Sadhu Singh v. the District Board, . daspur. Speaking for the Court Sikri J. observed that the provision regarding exemption was clearly covered by the laid down by the Supreme Court in the case of P. J. Irani v. Stale of Madras in which a similar provision in the Madras Buildings (Lease and Rent Control) Act, 1949 was held to be intra virus Article 14 of the Constitution and the Court was unable to find any valid distinction between the provisions of the Madras Act and the East Punjab Act. Similarly, in comparing the provisions of the Madras and East Punjab Act with section 8(2) of the Pre-emption Act, I am unable to find any distinction in the powers conferred. To my mind, the provision clearly falls within the class (v) in the analysis of the leading decision on Article 14 by Das C.J. in Ram Krishna Dalmia v. Justice Tendolkar.
(23) The last contention of Mr. Sachar was that if the impugned provision was allowed to stand, the State Government could virtually repeal the Act by issuing notifications making the provisions inapplicable in the State, applying exemptions to various lands or districts in successive notifications and this would amount to excessive delegation of Legislative power. The argument, however, suffers from an obvious fallacy. Legislation clearly implies doing something positive, i.e., making the law, repealing the law or amending or adding to the law. That result does nto follow when the power is given to the State Government in certain cases to suspend the operation of the law. By suspending the operation of the law, under an exemption clause, the suspended statute is neither altered, modified or added to or repealed. It remains on the statute book and intact. The exeemption merely stops its operation during the period of exemption. The moment the exemption comes to an end, the statute operates with full vigour.
(24) The exercise of power of exemption does nto amount to the exercise of the power of repeal. Repeal implies obliteration of the statute, while exemption merely implies suspension of the statute for the time being. The statute remains on the statutebook, a result which is unknown to repeal except for things suffered or done there under. Furthermore, the Pre-emption Act, read as a whole, lays down the policy and furnishes a guide to the State Government for the exercise of the power of exemption, as has already been noticed by me above. The contention is, thereforee, rejected.
(25) The view that I have taken hereinbefore makes it unnecessary for me to deal with all the other decisions cited at the Bar. The result is that this appeal is dismissed with costs.