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Habib Ullah and anr. Vs. Gh. Ahmed Baba and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtJammu and Kashmir High Court
Decided On
Case NumberSecond Appeal Nos. 66 and 67 of 1974
Judge
Reported inAIR1980J& K23
ActsJammu and Kashmir Right of Prior Purchase Act, (1993 Smvt.) - Section 15; ;Constitution of India - Articles 19(1) and 326; ;Constitution of Jammu and Kashmir - Section 157; ;Punjab Act - Section 16
AppellantHabib Ullah and anr.
RespondentGh. Ahmed Baba and ors.
Appellant Advocate J.L. Choudhary, Adv.
Respondent Advocate K.N. Raina and; A.K. Malik, Advs.
Cases ReferredPhool Chand v. Lala Neem Chand
Excerpt:
- g.m. mir, j.1. in view of the challenge thrown to the constitutionality of sub-section (5) of section 15 of the jammu and kashmir right of prior purchase act in the two civil second appeals, the matter has been referred to full court for consideration and adjudication. the learned counsel for the parties as well as the learned advocate-general were heard in this regard.2. the trial court dismissed the suits holding that there was no right of prior purchase in the pre-emptor while the 1st appellate court reversed this finding of the trial court and decreed the suits. it was against the judgment of the district judge anantnag that the present appeals have been filed in which, inter alia, an objection has been taken to the effect that the judgment and decree of the 1st appellate court not.....
Judgment:

G.M. Mir, J.

1. In view of the challenge thrown to the constitutionality of Sub-section (5) of Section 15 of the Jammu and Kashmir Right of Prior Purchase Act in the two civil second appeals, the matter has been referred to Full Court for consideration and adjudication. The learned counsel for the parties as well as the learned Advocate-General were heard in this regard.

2. The trial Court dismissed the suits holding that there was no right of prior purchase in the pre-emptor while the 1st Appellate Court reversed this finding of the trial Court and decreed the suits. It was against the judgment of the District Judge Anantnag that the present appeals have been filed in which, inter alia, an objection has been taken to the effect that the judgment and decree of the 1st Appellate Court not being in ac-cordance with law be set aside as the 1st Appellate Court has failed to take into consideration the unconstitutionality of 'fifthly' of Section 15 of the Right of Prior Purchase Act. It was prayed that the judgment and decree passed by the 1st Appellate Court be set aside and the suit of the plaintiff be dismissed with costs.

3. Before proceeding further it would be profitable to note Section 15 of the Right of Prior Purchase Act, 1993 (hereinafter referred to as the Act), the 5th clause of which is subjected to the objection of being invalid on the basis of being unconstitutional. The whole section is reproduced below :

'15. Person in whom right of prior purchase vests in urban immovable property. -- The right of prior purchase in respect of urban immovable property shall vest -

Firstly -- in the co-sharers of 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 property having a staircase common to other properties, in the owners of such properties;

Fourthly -- where the sale is of property having a common outer entrance with other properties, in the owners of such properties;

Fifthly -- where the sale is of servient property in the owners of the dominant property, and vice versa;

Sixthly -- in the owners of property contiguous to the property sold.'

4. From a perusal of Clause fifthly, it is manifest that the right of prior purchase in respect of urban immovable property has been enacted to vest in the owner of the dominant property when the sale is of servient property. This is so vice versa also. In view of Article 19(1)(f) the fundamental right conferring the right on all citizens to hold, possess and acquire and keep and dispose of the property, the argument at the bar was that the owner of the property mentioned in Clause fifthly of Section 15 of the Right of Prior Purchase Act is subjected to restrictions in dealing with his property as he Would like to deal with and that the restriction so laid by virtue of the said Clause fifthly was unreasonable inits nature and in character and therefore the clause needs to be struck down as unconstitutional. There is no denying the fact that the fundamental right to hold, acquire and dispose of the property as mentioned in Article 19(1)(f) is subject to limitations and restrictions as stated in Clause (5) of the Article 19. The clause in effect authorises the State to introduce restrictions in the exercise of this right subject of course to the overriding requirement of the restriction being reasonable.

5. Section 15 of the Right of Prior Purchase Act undoubtedly introduces restrictions in the right created under Article 19(1)(f) but the question that has fallen for determination is as to whether the restrictions as laid in Section 15 of the Act in general and in Clause fifthly in particular were or were not reasonable restrictions and as such could be held to be in accordance with the constitution. Article 19 of the Constitution of India guarantees to the citizens of India what are termed as seven pillars of freedom, One of these pillars was contained in Sub-clause (f) of Clause (1) of Article 19 which was to the effect that all citizens shall have the right to acquire, hold and dispose of property. Like all other clauses of Sub-section (1) of Article 19, Sub-clause (f) also came to confer the fundamental right subject to certain limitations, which are quoted below :

'(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 prevent 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 general public or in the interest of the security of the State.'

6. There is no dispute with regard to the proposition that the fundamental right to acquire, hold and dispose of property could be subjected to restrictions imposed by law. The fundamental right to acquire land, hold it and dispose it of has been undoubtedly subjected to restrictions by virtue of the Act. Sub-clause fifthly thereof vests the right of prior purchase on account of easement in both the dominant as well as servient owner. The question that arises is whether these restrictions are reasonable and could be enforced under the Constitution.

7. The question as to whether such restrictions as contained in the EasementsAct and in our State imposed by virtue of the Bight of Prior Purchase Act are constitutional or not has come up for adjudication on several occasions before this Court as well as some other High Courts and also before the Supreme Court. The whole question almost came to be clinched in AIR 1962 SC 1476. In that case the Supreme Court was considering the constitutionality of enactments such as Berar Land Revenue Code and Berar (Rewa ?) State Pre-emption Act and also Section 16 of the Punjab Preemption Act of 1930 in the background as to whether the restrictions imposed under these enactments and provisions of law could be held reasonable restrictions within Clause (5) of Article 19 of the Constitution. The said Section 16 corresponds word for word to Section 15 of the J. & K. Right of Prior Purchase, Act. The Supreme Court in this elaborate judgment considered and discussed the constitutionality not only of a particular ground of easement fallen for determination before it, but gave its valuable opinion and verdict with respect to almost all the contingencies enumerated in Section 16 of the Punjab Pre-emption Act. The principle of law laid down by the Supreme Court vide AIR 1962 SC 1476 broadly speaking was that the clauses firstly, thirdly and fourthly in Section 16 of the Punjab Act laid reasonable restrictions to the fundamental right of disposing, acquiring and holding the property as enshrined in Article 19(1)(f). The judgments, however struck down Clause sixthly which conferred the right of pre-emption on the basis of contiguity and vicinage as unconstitutional and held that the restriction of vicinage was unreasonable. The judgment of course makes no mention about the constitutionality or otherwise of Clauses 'secondly' and 'fifthly' appearing in Section 16 of the Punjab Act corresponding to same clauses in Section 15 of the State Act, May be about Clause secondly one may conjecture on the analogy of the reasoning adopted in the judgment of the Supreme Court with regard to Clause 'firstly' that the restriction laid therein may also amount to a reasonable restriction but the Supreme Court has not held so, nor does this matter immediately fall for consideration before us. We will do well in leaving this matter to be considered when the same is specifically brought before the Court. We are immediately in these appeals however, concerned only with Clause 'fifthly' in Section 15 of the J. & K.Right of Prior Purchase Act and to find out as to whether the restriction laid therein was or was not a reasonable restriction. Whether an easement is a reasonable restriction on the right to acquire property as envisaged under Clause (5) of Article 19 of the Constitution came up for consideration before a Full Bench of this Court in AIR 1965 J & K 62. The Full Bench was of the view that the restriction on the basis of an easement was a reasonable restriction and therefore, held Clause 'fifthly' of the Right of Prior Purchase Act as constitutionally valid. The main reason that appears to have influenced the Full Bench to arrive at such a conclusion was its belief that though the Supreme Court in AIR 1962 SC 1476 did not specifically deal with Clause 'fifthly' and therefore, had no occasion to express its opinion directly or give a verdict specifically with regard to its constitutionality, yet the ground appeared to the Full Bench of this Court to be analogous to the fourth ground of easement the constitutionality of which was upheld by the Supreme Court and therefore it was of the view that it must be deemed that the Supreme Court simultaneously upheld also the constitutionality of Clause 'fifthly' of Section 15 of the Right of Prior Purchase Act. To us, however, it appears that Clause 'fourthly' as reproduced above is quite distinct and different in nature and contents from Clause 'fifthly' and pertains to a situation entirely different inasmuch as it cannot be said that a common outer entrance to several properties, the ground in fourthly, in any way created a situation like the one that may prevail between servient and dominant properties. On a mere reading of Clauses 'fourthly' and 'fifthly' it could not be concluded that both these provisions were analogous and therefore, the view of the Full Bench in AIR 1965 J & K 62 that the constitutionality of Clause 'fourthly' having been upheld by the Supreme Court, it would naturally follow that Clause 'fifthly' also has been held to be constitutional could not be entertained, though as will be seen later in this judgment, we may also agree with the conclusions arrived at in this regard in AIR 1965 J & K .62 (FB) but that would be for reasons and on grounds different to those referred to in AIR 1965 J & K 62 (FB). In another judgment ofthe Supreme Court reported in AIR 1967 SC 1578 which was a case from J & K, Clause 'fourthly' of Section 15 of the Right ofPrior Purchase Act came up for consideration and it has been held that 'fourthly' contained a reasonable restriction and therefore, was constitutionally valid. In this judgment also no reference has been made to Clause 'fifthly' of Section 15. We are unable, therefore, to persuade ourselves to agree with the reasoning in AIR 1965 J & K 62 (FB) to hold that Clauses 'fourthly' and 'fifthly' of Section 15 were analogous and therefore, Clause 'fourthly' having been upheld as constitutional, by the Supreme Court the same conclusion would follow with regard to 'fifthly' also. For the view the Full Bench propounded, yet another reason has been given by it which is reproduced below : Referring to AIR 1962 SC 1476 the Court observed :

'Further their Lordships have mentioned all the six grounds. If they were of the opinion 'that the right of easement should not be upheld as a ground of pre-emption, their Lordships would have necessarily made that comment. In the case of contiguity their Lordships have in unscathing terms condemned their right. Contiguity came No. 6 in the list and their omission to condemn No. 5 before No. 6 is very significant. In our opinion, therefore, easement is a valid ground for the exercise of the right of prior purchase.....'

8. We, however, could not agree with this reasoning. It may be significant that the Supreme Court did not take up 'fifthly' for direct consideration before it considered the Clause 'sixthly' but that would not mean that the Clause 'fifthly' therefore was also held to be a reasonable restriction.

9. Before taking up the matter as to whether Clause 'fifthly' of Section 15 of the Act has laid reasonable restriction and as such was constitutional we will first briefly refer to the special constitutional position prevailing in the Jammu and Kashmir State. As is well-known the State of Jammu & Kashmir has a Constitution of its own. Before the Constitution of J & K came into existence in 1957, most of the provisions of the Constitution of India were made applicable to the State by virtue of the Constitution Application Order of 1954. The fundamental rights appearing in Chapter III of the Constitution of India are applicable to the State of Jammu & Kashmir and form part of the Constitution of Jammu and Kashmir. With some modifications and alterations a number of provisions of the Constitution of Indiaform part of the Constitution of J. & K. It is now well settled in rest of India that it was the function and the duty of the courts to probe into and scrutinize the restrictions laid by various legislatures in India on the exercise of various fundamental rights and find out as to whether the restrictions were or were not reasonable. It is the function of the courts there to decide upon this matter. The same however, may not be said to be the position in so far as the State of J & K is concerned. This will be obvious from Sub-section (7) which has been added to Article 19 of the Constitution of India. This sub-section lays down that it was the concerned legislature which was competent to say whether a certain restriction was or was not reasonable. Sub-section (7) of Article 19 applies only to the State of Jammu and Kashmir and is as follows :--

'The words 'reasonable restriction' occurring in Clauses 2, 3, 4 and 5 shall be construed as meaning such restrictions as the appropriate legislature deems reasonable'.

10. Sub-clause (5) of Section 19 as one of the sub-clauses referred to in Sub-clause (7) (supra) concerns with the reasonable restrictions on the fundamental right of holding, keeping and possessing the property. Obviously therefore the question as to whether the restriction so imposed was reasonable or not was within the competence of the Legislature of the State to determine. The courts apparently do not possess, nor have they been vested with, this particular jurisdiction. In this legal background a contention was raised at the bar that the competent legislature having enacted Section 157 of the Constitution of J & K has in fact laid down that all laws, notifications, rules and bye-laws etc. which were in existence before the Constitution came into force were valid and shall continue to remain in force, till the same are declared void by competent authority. It was urged that by introducing this section in the Constitution, the Constituent Assembly of the J & K State has virtually declared that all the laws in existence before the coming into force of Constitution were good laws and restrictions imposed in any of these laws on any of the fundamental rights were good and reasonable and, therefore, could not be made subject matter of a challenge now in any court of law.

The contention with reference to the matter at hand in nut-shell would amount to mean that the Legislature which was the only competent body in this regard has already by enacting Section 157 of the Constitution of Jammu and Kashmir, held and declared therein that the Right of Prior Purchase Act and the restrictions levied on the fundamental right of holding, acquiring and disposing of the property as envisaged under Article 19 of the Constitution of India were reasonable restrictions, therefore the constitutionality of the provisions of section of the Right of Prior Purchase Act was no longer open to challenge. This contention however is fallacious and does not appeal to us. The effect of the provisions of the Constitution was prospective and not retrospective. The Right of Prior Purchase Act as well as the Easements Act were on the statute book long before the Constitution and especially the fundamental rights came to be enacted. No doubt at the time Section 157 of the Constitution of J & K was enacted both the Right of Prior Purchase Act as well as the Easements Act were in existence. But what Section 157 of the State Constitution has done is that it has saved and has further said that these enactments as well as all other enactments in force on or before the coming into force of the Constitution (which in the case of the State will mean 14th of May, 1954 when the Constitution (Application) Order came into force), will continue to remain in force till their removal from the statute book in accordance with law. Section 157 nowhere specifically in so many words states or even indirectly could be construed to have laid down the proposition that the restrictions imposed on various fundamental rights by various Acts in general and by virtue of Section 15 of the Right of Prior Purchase Act in particular have been gone into and considered from the angle by the legislature and in its wisdom found the same to be reasonable restrictions. What we are being asked now by Mr. Raina to presume is that because the Act has been saved under the Constitution, it should be presumed that the restrictions imposed under its provisions have also been considered and found and declared to be reasonable. We are however, unable to agree that the competent legislature has ever considered and applied its mind and thereafter declared that the restrictions were reasonable andtherefore on that ground the constitutionality of the provisions of Section 15 of the Right of Prior Purchase Act could not now be challenged. We are on the contrary of the view that this is not the position. The legislature could not be said to have considered this matter at the time a relevant Act was enacted and therefore, in this view of the matter it was competent for the courts to adjudicate upon this matter and find out by itself as to whether a particular restriction was reasonable or not.

11. The Right of Prior Purchase Act was enacted long before the fundamental rights or Section 157 of the Constitution of J. & K. came into being. How can it be said that the provisions of Right of Prior Purchase Act were gone into, scrutinized, considered and thereafter found to be reasonable on the touchstone of a fundamental right, that never existed at the time the Act came into force. It is well established rule of construction and is obvious from a number of decisions of the Supreme Court that the provisions of constitution must ordinarily be given only prospective operation. We have not been shown any reason as to why this well established rule of construction should be given a good bye in this case. Even from a plain reading of Sub-section (7) of Article 19 it would be apparent that the effect of this provision was prospective. It does not contain even a suggestion to the contrary. It will be worth-while to mention here that Sub-section (7) as added to Article 19 of the Constitution of India for all practical purposes appears to be a temporary measure. It was first introduced for a period of 5 years, then its life was extended by another 5/10 years and then its life continues to be extended from time to time. It can, therefore, come to an end at any time. It was only a provisional and transitory provision and such a provision therefore, may not be held to have the retrospective effect. No doubt the Legislature of the State is competent to enact in a particular legislation a provision to the effect that the restriction imposed on one or more fundamental rights in that particular-enactment was justified and reasonable (and this may or may not be justiciable in a court of law so far as the constitutional position prevailing at present in J. & K. State was concerned), but it can be said without any fear of contradiction that the High Court of the State is competentand has jurisdiction to decide and arrive at a conclusion with regard to the constitutionality and reasonableness of a restriction imposed on one or more fundamental rights as enumerated in Part III of the Constitution in general and on Article 19 of the Constitution of India in particular, through enactments that were in force on or before the day the Constitution (Application) Order of 1954 came to be applied to the State. This particular matter has been considered earlier also in a Division Bench case in Tarachand v. Mehta Durga Dass reported in AIR 1963 J & K 27. It is laid therein as follows :--

'Clause 7 added to Article 19 of the Constitution of India by the President's order dated 14-5-1954 in its application to the State of J & K can, according to its plain tenor and ordinary meaning have only prospective and not retrospective operation. In no sense can Clause 7 be construed as intended to save from attack the laws which were passed by the Legislature many years before the Fundamental rights came to be enacted. That clause cannot therefore, be invoked to put out of the way the decision of the Supreme Court in AIR 1962 SC 1476.'

12. Following the principle of law laid down in AIR 1962 SC 1476 the Division Bench in AIR 1963 J & K 27 held the ground of vicinage as unconstitutional. In the case reported as AIR 1963 J & K 27 Clause 'fifthly' had also been stated as one of the grounds for preemption besides the ground of vicinage. But as the case was rejected on the vicinage ground, it was nevertheless remanded for evidence on the ground of easement as the evidence with regard to Clause (5) of Section 15 of the Right of Prior Purchase Act was found defective in many respects. Would it be to read too much in between the lines if one is permitted to assume that the Division Bench though it has not said so but in its heart of hearts was of the view that Clause 'fifthly' to Section 15 of the Right of Prior Purchase Act was in fact constitutional and contained reasonable restriction on the fundamental right concerned, as otherwise the Division Bench would not have allowed itself to be persuaded to remand the case for recording further evidence. Apart from this, however, there are numerous reasons to which we will come presently which would show that the right of easement was a reasonable restriction on the fundamental right as enumerated in Article 19(1)(f).

13. We are of the view therefore that this court was well within its jurisdiction and was competent to go into the question as to whether the restrictions imposed on any or all the fundamental rights were reasonable restrictions in terms of Sub-sections (2) to (6) of Article 19 of the Constitution of India in so far as the legislature of the State has not specifically applied its mind to this particular aspect and has failed to amend the pre-Constitution Acts in this regard or failed also to introduce a specific clause showing that such a consideration, was made and in the opinion of the legislature the particular restriction was deemed to be reasonable in enactments that came into force after the commencement of the application of Constitution Order of 1954.

14. As to whether an easement as envisaged in Clause (5) of Section 15 of the Right of Prior Purchase Act is in fact a reasonable restriction on the fundamental rights conferred vide Article 19(1)(f), it will be worthwhile to refer again to AIR 1962 SC 1476 (supra). The Supreme Court considered Section 16 of the Punjab Pre-emption Act also in that judgment which as already stated corresponds to Section 15 of the Right of Prior Purchase Act of the Jammu and Kashmir State. All the grounds on which a pre-emptor could claim pre-emption under the Pre-emption Act of the Punjab have found place also in the Jammu and Kashmir State Act. In AIR 1960 Punj 196 which was decided by a Full Bench of five judges it was held that whole of Section 16 of Punjab Act was constitutional and that the restrictions imposed under all the clauses of Section 16 were reasonable. The observations of the Supreme Court in this regard are thought provoking and the same are quoted below: (At p. 1483)

'As to Section 16 the reason which impelled the learned Judges to hold that the provisions of Section 16 were constitutional were to reduce the chances of litigation and friction and to promote public order and domestic comfort and to promote private and public decency and convenience. We are not able to understand how providing pre-emption on the ground of vicinage would carry out these objects, assuming their promotion is in the interests of the general public.'

The learned Judges of the SupremeCourt continued :--

'Perhaps the reasons why these grounds were given in the 1954 case may be that the learned Judges were considering not merely pre-emption by vicinage but also other grounds provided in Section 16. Whatever may be said about these reasons, so far as other grounds of pre-emption contained in Section 16 are concerned, these reasons have in our opinion no validity as far as pre-emption by vicinage is concerned.'

15. It is obvious that the reasoning and grounds in upholding the constitutionality of Section 16 of the Pre-emption Act of the Punjab as given in AIR 1960 Punj 196 (PB) (which gave rise to the appeal to the Supreme Court reported in AIR 1962 SC 1476) were not totally rejected by the Supreme Court, but in effect the reasoning appears in a sense to have received sympathy and support from the Supreme Court when it came to hold almost all other clauses of Section 16 to be constitutionally valid, except of course Clause 'fifthly' which was not considered at all in that judgment and Clause 'sixthly' which was turned down as unconstitutional. It was only with regard to Clause 'sixthly' i.e. the ground of vicinage that the reasons given in AIR 1954 Punj 54 (FB) and also in AIR 1960 Punj 196 (FB) did not appeal to the Supreme Court as sound as was obvious from the passage quoted above from AIR 1962 SC 1476.

16. The right of pre-emption on account of easement is not a right based on vicinage, though it may be that the right of easement may arise in most cases because of contiguity also. The right to pre-empt is based on vicinage plus something more i.e. the right of easement conferred by statute. Clauses 'fifthly' and 'sixthly' are in no manner analogous to each other. Each possesses its own peculiarities and specialities,

17. It is a settled principle of law that the constitutionality of every Act is presumed unless it is made out clearly and plainly and irrefutably that the Act was repugnant to Constitution. The constitutionality of Prior Purchase Act of the State is, therefore, to be presumed as nothing has been shown to hold that it was repugnant. Merely because Clause 'sixthly' of Section 15 of the Act has been declared not constitutional in the context of Section 16of the Punjab Act having been declared so, it could not be said that because of this other clauses of Section 15 or the whole Act for the matter of that was repugnant to the Constitution. In State of Madras v. V. G. Row, AIR 1952 SC 196, Patanjali Shastri, C. J. observed that the test of reasonableness wherever prescribed should be applied to each individual statute impugned. No abstract standard or general pattern of reasonableness can be laid down as applicable to all cases.

18. There can be little doubt that the law of pre-emption does impose restrictions on the right of both the vendee and the vendor. It has been rightly said that it was a clog on the freedom of sale and tends to diminish the market value of the property. If however it is shown that the restrictions laid on the purchase and sale of the property are reasonable, the courts of law are bound to give effect to such restrictions within the provisions of the Constitution, It has not been an easy task to precisely and clearly define the words 'reasonable restrictions' and define its limits. However the following passage from AIR 1960 Punj 196 (FB) may be of some help to understand these words : (At p. 199)

'By the term 'reasonable' is not meant expedient, nor that the conditions must be such as the court would impose if it were called on to prescribe what should be the conditions. They are to be deemed reasonable where although perhaps not the wisest and best that might be adopted they are fit and appropriate to the end in view, to wit, the protection of the public and are manifestly adopted in good faith for that purpose. An act is reasonable when it is conformable or agreeable to reason, that is when common sense is applied to the whole situation, it is not illegitimate in view of the end to be attained. An act is unreasonable when it is plainly and grossly oppressive and contrary to reason'.

19. We are entirely in agreement with what has been said in this passage by the Full Bench of the Punjab High Court. The easement more clearly referred as 'fifthly' in the Prior Purchase Act on all counts appears to us to be a restriction but a reasonable one. It is not contrary to reason, is not oppressive and appears to be fair in the circumstances.

20. It will therefore be reasonable to conclude that the restriction by way ofan easement mentioned in Clause 'fifthly' of the Act is a reasonable restriction as in our view it will reduce the chances of litigation and friction and that it would promote public order and also help in domestic comfort and further promote public and private decency and convenience.

21. We are therefore of the view that Clause 'fifthly' of the Right of Prior Purchase Act of the J & K State was constitutional and was a reasonable restriction within the provisions of the Constitution on the fundamental right mentioned in Article 19(1)(f).

22. The reference is accordingly answered and both the cases shall be sent to the learned single Judge for further necessary action.

Mian Jalal-Ud-Din, C.J.

23. I agree.

Kotwal, J.

24. I agree with my learned brother Mir, J. that Clause 'fifthly' of Section 15 of the J & K Right of Prior Purchase Act is constitutionally valid and does not infringe Article 19(1)(f) of the Constitution. I would, however, like to give my own reasons to support this conclusion.

25. It is now too late in the day to urge that right of pre-emption does not create any restrictions so far as the acquiring, holding or disposing of property is concerned. A vendee's right to acquire or hold the property is always subject to the superior right of the pre-emptor whereas a vendor too may some time come across similar difficulty in disposing of his property. He may for instance like to sell his property to a friend or relative at a much lower price but may not be able to do so, if the sale is likely to be pre-empted by a person to whom he does not want to show any favour. The fact that right of pre-emption is not a personal right but a right attached to the property sold, and therefore an incident of the property which must pass on to the vendee along with the property cannot detract from this conclusion. The controversy existing on this point has been finally set at rest by the Supreme Court in Bhau Ram v. Baij Nath Singh ATR 1962 SC 1476 wherein it has been held : (At p. 1479)

'.....We are of opinion that even ifthe law of pre-emption creates a right which attaches to property it would be creating a restriction so far as the acquiring, holding of disposing of propertyis concerned which was not enacted. Therefore, even if the liability attaches to the property, it will still amount to a restriction on the right guaranteed by Article 19(1)(f), when it attaches to the property by the law of pre-emption.'

26. Pre-emption (Shufa) was unknown to Indian society prior to the advent of Muslim rule. While tracing the origin of the law of pre-emption Mehmood, J. in Govind Dayal v. Inayat Ullah, (1885) ILR 7 All 775 (FB) observed: 'The law of pre-emption is essentially a part of Muhammadan Jurisprudence. It was introduced into India by Muhammadan Judges who were bound to administer Muhammadan Law.' This law was gradually adopted as a custom by the non-Muslims as well, which was upheld as based upon justice, equity and good conscience, for the reason that a non-Muslim who dealt with a Muslim knowing perfectly well the conditions and obligations under which the property was held could not be permitted to ignore them, merely because the Muhammadan Law did not apply to him. (Gobind Dayal's case Supra). With the passage of time this custom got statutory recognition in most parts of northern India where Muslim rule had greater impact and several pre-emption laws came to be passed embodying almost similar provisions. This also explains why the custom of pre-emption was held opposed to justice, equity and good conscience by the Courts in southern parts of India but held to be based upon justice, equity, and good conscience by courts in northern parts of India, (See Ibrahim v. Munni Mini-Din, (1870) 6 Mad HCR 26 and Mohammad Beg v. Narayan Meghaji, AIR 1916 Bom 255). There were various considerations, as for example preserving purdah among females, according discriminatory treatment on the ground of religion, race or clan, and preserving and promoting religious fraternity among Muslims which necessitated introduction of law of preemption during early Muslim rule. The object was to keep strangers or non-Muslims away as far as possible. The three categories of this right were co-sharership (Shafi-i-Sharik), participation in immunities and appendages including easement (Shafi-i-Khalid), and neighbourhood (Shafi-i-Jar). This is clearly reflected in the various pre-emption laws, which are in force as well as the custom of pre-emption which is beingfollowed in various parts of the country even today. A slightly deeper study of Section 15 of the Right of Prior Purchase Act would reveal that clauses, 'Firstly', and 'secondly' of this section are relatable to the first category, Clauses 'Thirdly', 'Fourthly' and 'Fifthly' are relatable to the second category, and Clause 'Sixthly' is relatable to the third category.

27. With the end of foreign rule in India all these notions which even otherwise had by then become antiquated on account of various structural changes in society and polity lost most of their relevance. The Constitution guaranteed to the citizens of India certain fundamental rights including the right to acquire, hold, and dispose of property. All laws whether anterior or posterior were declared void under Article 13 to the extent they were inconsistent with these rights though these rights too were subjected to certain restrictions. The Constitution preached fraternity not on the basis of religion but on the basis of citizenship and abhorred discrimination on the ground of caste, creed, place of birth, religion, or sex. We are presently concerned with the restrictions imposed on the right under Article 19(1)(f) to acquire, hold or dispose of property. This right could be restricted by the State provided the restriction imposed was reasonable and was also in the interests of the general public or security of the State. Security of the State is plainly not an object sought to be achieved by the Act. In short, if Clause 'Fifthly' is found to impose a restriction, which is not only reasonable but is also in the interests of the general public, then the clause must be held to be constitutionally valid, whereas if none or even one of the aforesaid two conditions is not satisfied then the clause has to be held to be unconstitutional.

28. Reasonable is that which stems from reason, which is not arbitrary, or capricious. A reasonable restriction as such must be one which has a reason to be imposed. This reason may be to achieve a certain object. There must be, therefore, a nexus between the restriction and the object sought to be achieved. Furthermore, the object must not be repugnant to the letter or even spirit of the Constitution. A notion which at one time used to be considered as a value may be only an evil after the enforcement of the Constitution. Take for example the case of untouchability or discrimination on the ground of sex, caste, creed or religion all of which were at one time regarded as fundamentals of the society but have now been declared as un-constitutional. Viewed thus, the restriction contained in Clause 'Fifthly' cannot be deemed to be reasonable if the only purpose which it is supposed to serve is the preservation of religious fraternity or to make discrimination on the ground of religion, race or clan, for that would be contrary to Article 15 of the Constitution. But, this is not the only ground upon which it can be defended. It tends to facilitate a much better and convenient use of the servient and dominant property besides putting an end to the litigation that might ensue between the owners of these two tenements. On the vesting of the ownership rights of both these tenements in one person, he can make necessary additions and alterations in one tenement or the other in such a way that both of them are put to a more profitable use. This is surely a reasonable restriction which is also in the interests of the general public. Support for this view is available from a Full Bench judgment of the Madhya Bharat High Court in Babulal v. Gowardhandass AIR 1956 Madh B 1, wherein is was held : (At p. 6)

'As to Sub-sections (1) and (5) of Section 12, which give to a co-sharer and to the owners of dominant and servient properties the right to pre-empt, I am inclined to take the view that they are reasonable provisions. The reasonableness is to be found in the fact that in the case of such persons the effect of the right is to place them in a favourable position for better and quiet enjoyment of the immovable property they possess. This consideration of beneficial enjoyment of the property is absent in the case of a pre-emptor by mere vicinage.'

A similar view appears to have been taken in an earlier Full Bench decision of the Rajasthan High Court in Panch Gujar Gaur Brahmans v. Amarsingh, AIR 1954 Raj 100 wherein the court while making a distinction between the grounds of vicinage and easement observed as under :--

'.....While something can be saidin favour of reasonableness of the restriction which may allow a co-sharer or a participator in immunities and appendages to have a right of preferential purchase in respect of the property sold by another co-sharer or participator in immunities and appendages and such a restriction may also be in the interests of the general public which includes a section of the public the reasonableness of the restriction which may deprive the purchaser of his property on a claim by a neighbour on the sole ground that his property stood adjoining the one sold required examination.....'

30. A similar view taken by a Full Bench of this court in Sewanath v. Faqir Chand, AIR 1965 J&K; 62, is, therefore, not open to question. I now proceed to examine the three decisions of the Allahabad High Court, which have been relied upon by Mr. Choudhry in support of his contention that Clause 'Fifthly' is violative of Article 19(1)(f) of the Constitution.

31. In Mahboob Hasan v. Ram Bha-rosey Lal, AIR 1966 All 271 one of the questions referred to the Bench was s Whether a custom of pre-emption on the ground of easementary right (Shafi-i-Khalit) was void under Article 13 of the Constitution. This question was answered in the affirmative on the ground that sale of servient tenement to a stranger could not bring about the extinction of easementary right of the owner of dominant tenement over it and was, therefore, an unreasonable restriction on the right of the vendee to acquire the servient tenement. With utmost respect to the learned Judges who constituted the bench, it is difficult to fall in line with them in taking this view. To begin with, the learned Judges pre-supposed that the only purpose which could be achieved by pre-empting the sale of servient tenement was preservation of easementary rights of the owner of the dominant tenement over it. Secondly they did not envisage the benefits which would accrue to the owner of the servient tenement by pre-empting the sale of dominant tenement. It is interesting to find that even the learned Judges themselves expressed a doubt whether the restriction could be termed unreasonable under all circumstances. It is clearly reflected from the following observations contained in the Judgment: (At p. 273)

'Since the claim of a shafi-i-khalit may be based on a variety of grounds it is difficult to lay down definitely that such a right can or cannot be recognised as a reasonable restriction in the in-terest of general public within the meaning of Clause (5) of Article 1ft. Whether such a claim would be protected under Clause (5) of Article 19 will depend upon the nature of the claim made by a Shafi-i-Khalit.'

32. Here again the approach made by the learned Judges does not seem to be correct. A provision cannot be held to be ultra vires under a particular set of circumstances and intra vires under a different set of circumstances. The vice of unconstitutionality must be absolute which holds good under all circumstances.

33. The next case relied upon by the learned counsel is Jagdish Saran v. Brij Raj Kishore, AIR 1972 All 313 (FB). In this case pre-emption was claimed on two grounds, viz: right to flow water through a common spout and right to rest beams on the walls intervening the shop of the pre-emptor and the shop sold. On facts none of these grounds was held to create any easementary right in favour of the plaintiff. As regards the second ground it was further held that it could at best clothe the plaintiff with the status of Shafi-i-Jar and vicinage having been already struck down by the Supreme Court in Bhau Ram's case (AIR 1962 SC 1476) supra, the plaintiff was held to have no right to pre-empt the sale. The Full Bench however approved the decision in Mahboob Hasan v. Ram Bharosey Lal, AIR 1966 All 271, even though its correctness did not strictly fall for its consideration.

34. To the same effect is the latest decision of the said court in Phool Chand v. Lala Neem Chand, AIR 1978 All 539 which is simply based upon its two earlier decisions discussed heretofore. The view taken by this court and the High Courts of Madhya Bharat and Rajasthan in the three Full Bench decisions mentioned heretofore appears to be reasonable that right to pre-empt sale of the servient tenement by the owner of the dominant tenement and vice versa is not violative of Article 19(1)(f) of Constitution.

Anand, J.

35. I have had the advantage to go through the judgments prepared by my learned brothers Mir, J. and Kotwal, J. I entirely agree with the reasonings and concur with the view of my learned brothers that Clause 'fifthly' of Section 15 of the J. & K. Right of Prior Purchase Act, even though a restriction in so far as acquiring, disposing or holding ofproperty is concerned, is nonetheless a reasonable restriction and does not infringe Article 19(1)(f) of the Constitution of India.


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