1. This is a petition by Kishori under Article 226 of the Constitution of India. The respondents are the Board of Revenue, Rajasthan, the Additional Commissioner, Jaipur-Alwar, Girraj, Ram Sahai and Chandra.
2. The facts giving rise to this petition are that the Petitioner purchased from Chandra (Respondent No. 5) fields Nos. 54, 55, 56 & 184 in village Pataunda, Tehsil Hindaun, for Rs. 300 & a sale-deed was executed & registered evidencing the sale on the 16th of August 1950. Girraj & Ram Sahai (Respondents Nos. 3 & 4) filed a suit for pre-emption of the aforesaid fields in the Court of emption of the aforesaid fields in the Court of Assistant Collector, Hindaun, on the 14th November, 1950, basing their claim on the ground that the above fields had been sold to the Petitioner, who was not the resident of the village in which the fields were situated and that the said respondents were the residents of the village where the fields were situated. They, therefore, prayed for a decree for pre-emption in respect of the said plots.
Learned Assistant Collector, who tried the suit, dismissed it by his judgment dated 30th June 1951, holding that the petitioner was the sub-tenant of the neighbouring field No. 185 and the plaintiffs, (Respondents Nos. 3 and 4) had absolutely no interest in any of the fields belonging to the vendor, and, as such, they were not entitled to file the suit for pre-emption. Respondents Nos. 3 & 4 went in appeal to the Court of the Additional Commissioner (Respondent No. 2), who reversed the decree of the first Court and decreed the suit by his judgment dated 10th January 1952.
The petitioner went in appeal against the judgment of the Addl. Commissioner to the Board of Revenue, who, by their judgment dated 10th April 1953, confirmed the judgment and decree of Respondent No. 2 and dismissed the appeal on the ground that the petitioner was not a subtenant of the property in suit and therefore he was not entitled to resist the claim for pre-emption of the Respondents Nos. 3 and 4.
3. We have heard Shri M. M. Tewari on behalf of the petitioner. Nobody appears on behalf of the respondents. The main contention of Shri M. M. Tewari is that the provisions of proviso (a) to Sub-section (2) of Section 11 of the JaipurTenancy Act, 1945, are ultra vires and unconstitutional inasmuch as they make a discrimination between the residents of one part of Rajasthanand that of another.
No such law exists in any other part of Rajasthan. except the territories which once, formed part of the erstwhile State of Jaipur, and after the coming into force of the Constitution of India, the provisions of the Proviso (a) toSection 11 (2) of the Jaipur Tenancy Act became void and inoperative by virtue of Articles 13 and 14 of the Constitution of India. It has also been argued that under Article 19 of the Constitution all citizens have the right to acquire, hold and dispose of property and if any restriction is placed on such rights, it should be a reasonable restriction.
It is not a reasonable restriction that the owner of a property should be compelled to sell it to a person who is a resident of the village where the property transferred is situated, nor is it a reasonable restriction on the right of the vendee of holding the purchased property that he should make way to a person who is a resident in the village in which the property to be Preempted is situated.
4. We have considered the argument of Mr. Tewari with anxious care especially as nobody appears on behalf of the respondents and have gone through the record of the case as well as the judgments of, all the revenue Courts. The provision which is attacked as unconstitutional finds place in Clause (ii) of proviso (a) to Section 11 (2) of the Act. Sub-section (2) along with this proviso and sub-clause (ii) reads as follows :
'11 (2) The interest of a pattadar tenant is transferable ;
Provided that .....
(a) in the case of a permanent transfer by voluntary sale made by a pattedar tenant being an agriculturist.
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(ii) if it is made in favour of a person other than a co-sharer or a sub-tenant of the holding transferred or a person who cultivates land and resides in the village, such co-sharer, sub-tenant or person shall have a right of pre-emption in respect of the aforesaid sale in the order in which they have been mentioned. A suit to enforce such right may be brought before the nazim within whose jurisdiction the holding transferred is situate within 90 days of the date on which the transfer was effected or possession acquired thereunder, whichever may fall later ; and where two or more persons sue, pre-emption shall be decreed in favour of the person who cultivates the smallest area or pays the lowest rent;'
It is not the case of either party that he is a co-sharer or a sub-tenant of the holding transferred. According to both the parties, the petitioner as well as the Respondents Nos. 3 and 4 cultivate land other than that in dispute in the village Patunda. According to both of them, the petitioner is not a resident of village Patunda Where the Respondents Nos. 3 and 4 resided. If, therefore, proviso (a) to Sub-section (2) of Section 11 of the Act is valid and not against the Constitution, the respondents Nos. 3 and 4 have a right of preemption of the property in dispute as against the petitioner.
The only question that arises for consideration is, whether the said provision in favour Of a resident of the village made in Sub-clause (ii) has become void. The transfer in question was made on the 16th August 1950, that is after the Constitution of India had come into force. The validity of the proviso (a) of Sub-clause (2) of Section 11 has, therefore, to be decided in the light of Articles 14 and 19 of the Constitution of India.
Article 13(1) of the Constitution of India says that all laws in force in the territory of India immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III, shall, to the ex tent of such inconsistency, be void. Learnedcounsel for the petitioner argues that the provisions of Clause (ii) of Proviso (a) to Sub-section (2) of Section 11 of the Act are inconsistent with the Provisions of Articles 14 and 19 which find place in, Part III of the Constitution.
So far as they are relevant to this case, they are as follows:
14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.' Article 19(1)(f) says :
'All citizens shall have the right :
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(f) to acquire, hold and dispose of property'. Article 19 Clause (5) is as follows :
'(5) Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevents the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the interests of any Scheduled Tribe.'
5. As has been said above, Mr, Tewari has argued that Clause (ii) of proviso (a) to Section 11 (2) of the Act so far as it relates to residents is inconsistent with the provisions of Article 14 because in no other part of Rajasthan, excepting the territories of the erstwhile Jaipur State, does such a law exist. The law is, therefore, discriminatory and is hit by Article 14.
As regards the applicability of Article 19(1)(f), it has been argued that the vendor had a fundamental right to dispose of his property without any let or hindrance and the vendee, who is the petitioner, had a fundamental right to acquire and hold that property which he has purchased. It was argued that it was not a reasonable restriction that the vendor should not be free to sell the property to anybody of his choice, excepting the persons mentioned in the proviso in question, and that the vendee should be deprived of his property, in favour of a Person, who is a resident in the village and cultivate property therein,
6. We shall consider the argument advanced on the basis of Article 19 of the Constitution first. There can be no doubt that under Article 19, the vendor had a right to dispose of his Property to any person of his choice and the applicant, who is the vendee, had a right to hold the purchased property. If any restriction were to be placed on the right of the vendor to dispose of and that of the vendee to hold that property, it should be reasonable.
7. This brings us to consider whether the restriction in favour of a person, who resides in the same village in which the property is situate, is a reasonable restriction within the meaning of Sub-clause (5) of Article 19. As has been said above, the vendee as well as the pre-emptor both cultivate land in village Patunda but such land is other than the land transferred. In this respect, both of them have the same qualification.
The only additional qualification which the pre-emptors have is that they are residents of the village in which the transferred property is situated whereas the vendees are not. It is not necessary for us to see whether the condition regarding preference to a co-sharer or a sub-tenant of the holding transferred is reasonable or not because we are not concerned with these preferences in this case.
The only thing that has got to be seen is whether the preference to a resident is reasonable restriction. No principle can be conceivedon the basis of which the mere residence may give a preferential right of pre-emption. It was held by a Full Bench of this Court in the case of Panch Gujar Gaur Brahmins v. Amar Singh I L R (1954) 4 Raj 84 : (AIR 1954 Raj 100) (A), that the right of pre-emption, based on vicinage only, is an unreasonable restriction on the fundamental right to acquire and hold property and is void by virtue of Article 13 of the Constitution.
In that case, the plaintiffs sued for possession of a certain property in enforcement of their right of pre-emption. The ground for pre-emption was that the house of the plaintiffs adjoined the house sold by the vendor to the vendees whose house did not adjoin the house sold. It was observed :
'In a society, where certain classes were privileged and preferred to live in groups and there were discriminations, on grounds of religion, race and caste, there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity or class of people and in those times a right of pre-emption to oust a stranger from the neighbourhood may have been tolerable or even beneficial.
Our Constitution, however, prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place or birth or any of them under Article 15 of the Constitution and guarantees a right to every citizen to acquire, hold and dispose of property, except by a restriction which may be reasonable and in the interests of general public.
Prima facie we have to lean towards the right guaranteed and keep the restriction within permissible limits, and, in that light, the manners and customs, which permitted the division of society into groups and exclusion of strangers from any locality, should now be considered as unreasonable. On these principles the enforcement of the right of pre-emption of the third class i. e., as based on ownership of adjoining property is, in our opinion, not a reasonable restriction on the right to acquire and hold property.'
8. If it was not considered a reasonable restriction on the right to acquire and hold property to give preference to a person whose house adjoins the house transferred, we find it still more unreasonable to give Preference to a person, who is a resident of the village in which the transferred property is situated. To our mind, therefore, Sub-clause (i) of Clause (a) of the proviso to Sub-section (2) of Section 11 of the Jaipur Tenancy Act, 1945, is void and unconstitutional so far as it gives preference to a resident of the village over a non-resident.
The judgments and decrees of the Additional Commissioner, Jaipur-Alwar, dated 10th January 1952 and the Board of Revenue dated 7th April 1953, on our finding on the question that the provisions of Sub-clause (ii) of Clause (a) of the proviso to Sub-section (2) of Section 11 of Jaipur Tenancy Act, 1945, so far as it gives preference to a resident over a non-resident of the village where the property is situated is void and unconstitutional as being contrary to the provisions of Article 19(1)(f) of the Constitution.
It is not necessary for us to go, into the question whether it is also hit by the provisions of Article 14 of the Constituion.
9. The petition is allowed ex parte and the Judgments and decrees of the Additional Commissioner, Jaipur-Alwar dated 10th January 1952 and of the Board of Revenue dated 7th April 1953 are quashed.
10. In the circumstances of the case, theparties shall bear their own costs.