Full Judgment Text
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PETITIONER:
ATAM PRAKASH
Vs.
RESPONDENT:
STATE OF HARYANA & ORS.
DATE OF JUDGMENT27/02/1986
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
OZA, G.L. (J)
BHAGWATI, P.N. (CJ)
MISRA, R.B. (J)
KHALID, V. (J)
CITATION:
1986 AIR 859 1986 SCR (1) 399
1986 SCC (2) 249 1986 SCALE (1)260
CITATOR INFO :
R 1986 SC1910 (3)
E&R 1987 SC 68 (1,2,3)
RF 1987 SC1140 (3)
RF 1987 SC1304 (8)
F 1987 SC1325 (1)
RF 1987 SC2117 (31)
F 1988 SC2137 (2)
R 1988 SC2141 (8)
RF 1991 SC1055 (1)
RF 1992 SC 109 (5)
R&E 1992 SC 207 (2,3,4)
RF 1992 SC1851 (2)
ACT:
Punjab Pre-emption Act 1913, as applicable in the State
of Haryans, 8. 15 - Whether constitutionally void.
HEADNOTE:
Interpretation of statutes - Provision of Constitution
sought to be interpreted or a statute whose constitutional
validity is sought to be questioned - Interpretation that
will promote march & Progress towards a Socialistic
Democratic State - To be given.
Section 15 of the Punjab Pre-emption Act, 1913 as
applicable in the State of Haryana, incorporates the right
of pre-emption based on consanguinity. The petitioners
challenged this right of pre-emption based on consanguinity
under Art. 32 of the Constitution on the ground that it
offends Arts. 14 and 15 of the Constitution. It was
contended on behalf of the respondent-State that the
classification in favour of the persons mentioned in section
15 has been made on reasonable basis in the interests of the
public: (1) to preserve integrity of village community; (11)
to avoid fragmentation of holdings; (111) to implement the
agnatic theory of succession; (iv) to promote public and
private decency; (v) to facilitate tenants to acquire
ownership rights; (vi) to reduce litigation consequent to
introduction of an outsider on family property or jointly
owned property.
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Allowing the writ petitions,
^
HELD: 1(1) There is no justification for the
classification contained in section 15 of the Punjab
Perception Act of the kinsfolk entitled to pre-emption. The
right of pre-emption based on consanguinity is a relic of
the feudal past. It is totally inconsistent with modern
ideas. The reasons which justified its recognition quarter
of a century
400
ago, namely, the preservation of the integrity of rural
society, the unity of family life and the agnatic theory of
succession are today irrelevant. It is difficult to uphold
the classification on the basis of unity and integrity of
either the village community or the family or on the basis
of the agnatic theory of succession which 18 again in a way
connected with the integrity of the family. The list of
kinsfolk mentioned as entitled to preemption is
intrinsically defective and self-contradictory. There is,
therefore, no reasonable classification and clauses ’First’,
’Secondly’ and ’Thirdly’ of 8. 15(1)(a), ’First’,
’Secondly’, and ’Thirdly’ of 8. 15(1)(b), clauses ’First’,
’Secondly’ and ’Thirdly’ of 8. 15(1)(c) and the whole of
section 15(2) are, therefore, declared ultravires the
Constitution. [419 E-H]
1.2 Clause ’fourthly’ of 8. 15(1)(a), clauses ’fourthly
and fifthly’ of 8. 15(1)(b) and clause ’fourthly’ of 8.
15(1) (c) are valid and do not infringe either Art. 14 or 15
of the Constitution. [416 H; 417 A]
2.1 Whether it is the Constitution that is expounded or
the constitutional validity of a statute that is considered,
a cardinal rule 18 to look to the Preamble to the
Constitution as the guiding light and to the Directive
Principles of State Policy as the Book of interpretation.
The Preamble embodies and expresses the hopes and
aspirations of the people. The Directive Principles set out
proximate goals. At the time of examining statutes against
the Constitution, it is through these glasses that the court
must look, ’distant vision’ or ’near vision’. The
Constitution being sui-generis, where constitutional issues
are under consideration, narrow interpretative rules which
may have relevance when legislative enactments are
interpreted may be misplaced. [411 D-F]
2.2 In 1977 the 42nd amendment proclaimed India as a
Socialist Republic. The word ’socialist’ was introduced into
the Preamble to the Constitution. The implication of the
introduction of the word ’socialist’ which has now become
the centre of the hopes and aspirations of the people - a
beacon to guide and inspire all that is enshrined in the
articles of the Constitution - is clearly to set up a
"vibrant throbbing socialist welfare society" in the place
of a "Feudal exploited society. When the Court considers the
question whether a
401
statute offends Article 14 of the Constitution it must
consider whether a classification that the legislature may
have made is consistent with the socialist goals set out in
the Preamble and the Directive Principles enumerated in Part
IV of the Constitution. A classification which is not in
tune with the Constitution is per se unreasonable and cannot
be Permitted. [411 G-H: 412 A-C]
3.1 The right of pre-emption based on consanguinity is
antiquated and feudal in origin and in character. The right
is very much like another right of feudal origin and
character which subsisted here and there in India until
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recently, particularly amongst the princely families,
namely, the right of succession by primogeniture. It is a
well-known characteristic of feudalism that the control of
the most important productive resource, land, should
continue in the hands of the same social and family group.
The right of preemption based on consanguinity is a
consequence flowing out of this characteristic. It is
entirely inconsistent with our Constitutional scheme. Since
the Forty-Second Amendment, India is a socialist republic in
which feudalism can obviously have no place and must go.
[404 G-H; 405 A-8]
3.2 Avoidance of fragmentation of holdings, promotion
of private and public decency and reduction of litigation do
not seem to have any relevance to the right of pre-emption,
vested in the kinsfolk of the vendor. me real question is
whether a classification in favour of kinsfolk of the vendor
can be considered reasonable so as to justify a right of
pre-emption in their favour for the purpose of preserving
the integrity of the village community or implementing the
agnatic theory of succession or preserving the unity and
integrity of the family. The classification cannot be
considered reasonable in the circumstances prevailing today
whatever justification there might have been for the
classification in 1960 when the legislature amended 8. 15 of
the Punjab Pre-emption Act. A scrutiny of the list of
persons in whose favour the right of preemption is vested
under s. 15 reveals certain glaring facts which appear to
detract from the theory of preservation of the integrity of
the family and the theory of agnatic right of succession.
Neither the father nor the mother figures in the list though
the father’s brother does. The son’s daughter and the
daughter’s son do. The sister and sister‘s son are
402
excluded though the brother and the brother’s son are
included. Thus relatives of the same degree are excluded
either because they are women or because they are related
through women. It is not as if women and those related
through women are altogether excluded because the daughter
and daughter’s son are included. If the daughter is to be
treated on a par with the son’s son it does not appear
logical why the father’s son (brother) should be included
and not the father’s daughter (sister). There are but a few
of the intrinsic contradictions that appear in the list of
relatives mentioned in s.15 as entitled to the right of pre-
emption. [417 G-H; 418 A-B; H; 419 A-C]
3.3 There has been a green and a white revolution in
Haryana. This State is also in the process of an industrial
revolution. Industries have sprung up through out the State
and the population has been in a state of constant flux ant
movement. The traditional integrity of the village and the
family have now become old wives’ tales. Tribal loyalties
have disappeared and family tries have weakened. Such is the
effect of the march of history and the consequence of
industrialisation, mechanisation of agriculture, development
of marketing and trade, allurement of professions and
office, employment opportunity else-where and so on. The
processes of history cannot be reversed and the court cannot
hark back to the traditional rural-family-oriented society.
Quite apart from the break up of the integrity of village
life and family life, lt is to be noticed that the property
in respect of which the right of pre-emption is to be
exercised is property of which the vendor or the vendors, as
the case may be, have rights of full ownership and their
kinsfolk have no present right whatsoever. [418 C-F]
3.4 The right of pre-emption is not to be confused with
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the right to question the alienation of ancestral immovable
property which the male lineal descendants of the vendor
have under the Punjab Custom (Power to Contest) Act 1920.
The right of preemption is now entirely a statutory right
and dissociated from custom or personal law.[418 G]
4.1 In Bhau Ram v. Baijnath Singh 1962 (Suppl.) 3
S.C.R. 724, the right of pre-emption given to co-share was
held to be a reasonable restriction on the right to hold,
acquire or dispose of property conferred by Art. 19(1)(f) of
403
the Constitution. What has been said there to uphold the
right of pre-emption granted to a co-sharer as a reasonable
restriction on the right to property applies with the same
force to justify the classification of co-sharers as a class
by themselves for the purpose of vesting in them the right
of pre-emption. [416 D-E]
4.2 The right of pre-emption vested in a tenant can
also be easily sustained. There can be no denying that the
movement of all land reform legislation has been towards
enabling the l tiller of the soil to obtain proprietary
right in the soil so that he may not be disturbed from
possession of the land and deprived of his livelihood by a
superior proprietor. The right of preemption in favour of a
tenant granted by the Act is only another instance of a
legislation aimed at protecting the tenant. There can be no
doubt that tenants form a distinct class by themselves and
the right of pre-emption granted in their favour is
reasonable and in the public interest.[416 G-H]
Bhau Ram v. B. Baijnath Singh, [1962] Supp. 3 S.C.R.
724 and Sant Ram v. Labh Singh A.I.R. 1965 S.C. 314 referred
to.
Ram Sarup v. Munshi Ors. [1963] 3 S.C.R. 858
explained.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 13227
of 1984 etc.
(Under Article 32 of the Constitution of India.)
Pankaj Kalra for the Petitioner in W.P. No. 13227 of
1984.
M/s. Harbans Lal, V.C. Mahajan, Mahabir Singh, Avadh
Behari Rohtagi, S.S. Banerjee, M.S. Gujaral, K.G. Bhagat,
Hardev Singh, Yogeshwar Prasad, Anil Dev Singh, Govind Das,
and K.P. Bhandari, M/s. S.M. Ashri, G.K. Bansal, J.S.
Malhotra, Ali Ahmed, Jayashree Ahmed, C.K. Bansal, Narendra
Singh Malik, D.K. Garg, B.P. Maheshwari, Vidya Sagar
Vashist, S.N. Agarwal, S.K. Jain, S.K. Dhingra, M.L. Verma,
S.K. Bagga, Ranbir Singh Yadav, H.M. Singh, Kirpal Singh,
Amlan Ghosh, M. Qamaruddin, Mrs. M. Qamaruddin, R.K. Kapur,
M.M. Kashyap, B.R. Kapur, Anil Katyal, O.P. Sharma, Amis
Ahmad Khan, R.C. Kapoor, Mrs. Laxmi Arvind, Suresh C. Gupta,
S.S. Ray, Anil Bhatnagar,
404
Praveen Kumar, Ashok Mathur, M.K. Dua, P.N. Puri, Gyan
Singh, I.S. Goel, S.N. Singh, C.V. Subba Rao, V.M. Issar,
Khaitan & Co., Brij Bhushan Sharma, P. Narasimhan, Ms. Madhu
Mool Chandani, K.K. Jain, Pramod Dayal, A.D. Sangar, A.K.
Ganguli, A. Mariaputam, Nafiz Ahmad Siddiqui, M.C. Dhingra,
Avtar Singh Sonal, Shreepal Singh, S.R. Srivastava, Ashok K.
Srivastava, Balmukand Goel, S.K. Bhulakia, R.C. Bhatia, R.K.
Agnihotri, Dr. Meera Aggarwal, R.C. Misra, M.S. Dhillon,
S.K. Dholakia, P. Narasimhan, R.K. Agarwal, T. Sridharan,
S.C. Patel, N.M.Popli, Brij Bhushan and Kailash Mehta for
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the appearing parties.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. The archaic right of pre-emption
based on consanguinity is in question in the several
thousand writ petitions under Art. 32 of the Constitution.
The constitutional validity of sec. 15 of the Punjab Pre-
emption Act, 1913 was applicable in the State of Haryana
which incorporates this right is challanged. The State of
origin of the Punjab Pre-emption Act, the State of Punjab,
has repealed the Act in 1973. The Act, however, continues to
be in force in the State of Haryana which originally formed
part of the State of Punjab. The vires of sec.15(1)(a) of
the Act was questioned in this Court in Ram Sarup v. Munshi
and Ors. [1963] 3 S.C.R. 858 on the ground that it offended
the fundamental right guaranteed by sec.19(1)(f) of the
Constitution. It was ruled by a Constitution Bench that
there was no infringement of Art.19(1)(f) and that the
provision was valid. The validity of sec.15 is now impugned
primarily on the ground that it offends Arts. 14 and 15 of
the Constitution.
The right of pre-emption based on consanguinity has
been variously described by learned judges as ’feudal’,
’piratical’, ’tribal’, ’weak’, ’easily defeated’, etc.
[Ralwa v. Vaaakha Singh A.I.R. 1983 Punjab & Haryana 480
(F.B.) at 490 and Bishan Singh v. Khazan Singh [1959] S.C.R.
878. Fusing as it does the Lies of blood and soil, it
cannot be doubted that the right is antiquated and feudal in
origin and in character. The right is very much like another
right of feudal origin and character which subsisted here
and there in India until recently, particularly amongst the
princely families, namely, the right of succession by
primogeniture. It
405
is a well-known characteristic of feudalism that the control
of the most important productive resource, land, should
continue in the hands of the same social and family group.
The right of pre-emption based on consanguinity is a
consequence flowing out of this characteristic. It is
entirely inconsistent with our Constitutional scheme. Since
the Forty-Second Amendment, India is a socialist republic in
which feudalism can obviously have no place and must go. Our
Constitution now proclaims India as a sovereign, socialist,
secular democratic republic in which the right to equality
before the law and the equal protection of the laws are
guaranteed and all citizens are assured that the State shall
not discriminate on grounds only of religion, race, caste,
sex, place of birth or any of them. The citizens are also
assured of the right to move freely through out the
territory of India, to reside or settle in any part of the
territory of India and to practise any profession or to
carry on any occupation, trade or business. The State is
further enjoined to direct its policy towards securing that
the operation of the economic system does not result in the
concentration of wealth and means of production to the
common detriment. The right to property has also now ceased
to be a fundamental right since the Forty- Fourth Amendment.
The question now is whether this adjunct of the right to
property, perhaps perfectly reasonable in a feudal society,
can be constitutionally sustained in a society dedicated to
socialistic-principles. The question has to be examined with
reference to Arts. 14, 15 and 19(1)(d) and (g), in the
background of the Preamble to the Constitution and Art.39(c)
of the Directive Principles of State Policy. We think that
the question has to be primarily answered with reference to
Art 14.
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The Punjab Pre-emption Act, 1913 repealed the Punjab
Pre-emption Act of 1905 and sec.12 of the 1905 Act which
corresponded to sec.15 of the 1913 Act was as follows:-
"12. Subject to the provisions of section 11, the
right of pre-emption in respect of agricultural
land and village immovable property shall vest-
(a) in the case of the sale of such land or
property by a sole owner or occupancy tenant, or
when such land or property is held jointly, by the
co-sharers,
406
in the persons who but for such sale would be
entitled to inherit the property in the event of
his or their decease, in order of succession;
(b) in the case of a sale of share of such land or
property held jointly-
first in the lineal descendants of the vendor in
the male line in order of succession; secondly, in
the co-shares, if any, who are agnates, in order
of succession;
thirdly, in the persons described in sub-clause
(a) of this sub-section and not hereinbefore
provided for;
fourthly, in the co-sharers, (i) jointly, (ii)
severally;
(c) As section 15(c), Act of 1913, with the
addition of words (i) jointly, (ii) severally, in
secondly, thirdly and fourthly.
Explanation 1. - In the case of sale of a right of
occupancy, clauses (a), (b) and (c) of this sub-
section, with the exception of sub-clause fourthly
of clause (c), shall be applicable.
Explanation 2. - In the case of a sale by a female
of property to which she has succeeded through her
husband, son, brother or father, the word
’agnates’ in this section shall mean the agnates
of the person through whom she has so succeeded."
Section 15 of the Punjab Pre-emption Act, 1913 as it
originally stood, was as follows:-
"15. Subject to 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
407
owned or held, is by all the co-sharers 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, not made by all the co-
sharers jointly, -
firstly, in the lineal decendants 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, not 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:
(c) If no person having a right of pre-emption
under clause (a) or clause (b) seeks to exercise
it, -
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firstly, when the sale affects the superior or
inferior proprietary right and the superior right
is sold, in the inferior proprietors, and when the
inferior proprietors, and when the inferior right
is sale, in the superior proprietors;
secondly, in the owners of the patti or other sub-
division of the estate within the limits of which
such land or property is situate;
thirdly, in the owners of the estate;
fourthly, in the case of a sale of the proprietary
right in such land or property, in the tenants (if
any) having rights of occupancy in such land or
property;
408
fifthly, in any tenant having a right of occupancy
in any agricultural land in the estate within the
limits of which the land or property is situated.
Explanation - In the case of sale by a female of
land or property to which she has succeeded on a
life tenure through her husband, son, brother or
father, the word (agnates’ in this section shall
mean the agnates of the person through whom she
has so succeeded.
In 1960, there were substantial amendments to the Punjab
Pre-emption Act and, after amendment, sec.15 was as
follows:-
"15. Persons in whom right of pre-emption vests in
respect of sales of agricultural land and village
immovable property - (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;
Forthly, 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 not made by all the co-shares
jointly-
First, in the sons or daughters or sons’ son or
daughters’ sons of the vendor or vendors;
Secondly, in the brothers or brother’s sons of the
vendor or vendors;
409
Thirdly, in the father’s brother or father’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 of land or property owned
jointly and is made by all the co-sharers jointly-
First, in the sons or daughters or sons’ sons or
daughter’s sons of the vendors;
Secondly, in the brothers or brother’s sons of the
vendors;
Thirdly, in the Father’s or brother’s or father’s
brother’s sons of the vendors:
Fourthly, in the tenants, who hold under tenancy
of the vendors or any one of them the land or
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property sold or a part thereof.
(2) Notwithstanding anything contained in
subsection(1) :-
(a) where the sale is by a female of land or
property to which she has succeeded through her
father or brother or the sale in respect of such
land or property is by the son or daughter of such
female after inheritance, the right of pre-emption
shall vest:-
(i) if the sale is by such female, in her brother
or brother’s son;
(ii) if the sale is by the son or daughter of such
female, in the mother’s brothers or the mother’s
brother’s sons of the vendor or vendors;
(b) where the sale is by a female of land or
410
property to which she has succeeded through her
husband, or through her son in case the son has
inherited the land or property sold from his
father, the right of pre-emption shall vest,-
FIRST, in the son or daughter of such (husband of
the) female;
SECONDLY, in the husband’s brother or husband’s
brother’s son of such female."
Agricultural land has been defined in the Act to mean
land as defined in the Punjab Alienation of Land Act, not
including the rights of a mortgagee, whether usufructuary or
not, in such land. ’Member of an agricultural tribe’ and
’Group of agricultural tribes’ are to have the same meanings
assigned to them respectively under the Punjab Alienation of
Land Act. The Punjab Alienation of Land Act has been
repealed, but the definitions continue to have force for the
purposes of the Punjab Pre-emption Act. Section 4 of the
Punjab Preemption Act states what the right of Pre-emption
is. It says :
"4. Right of pre-emption application of - The
right of pre-emption shall mean the right of a
person to acquire agricultural land or village
immovable property or urban immovable property in
preference to other persons, and it arises in
respect of such land only in the case of sales and
in respect of such property only in the case of
sales or of foreclosures of the right to redeem
such property.
Nothing in this section shall prevent a Court from
holding that an alienation purporting to be other
than a sale is in effect a sale."
t
Section 5(b) prescribes that there shall be no right of pre-
emption in respect of the sale of agricultural land being
waste land reclaimed by the vendee. Section 6 provides that
a right of pre-emption shall exist in respect of village
immovable property and subject to the provisions of section
5(b), in respect of agricultural land, but only subject to
all the provisions and limitations contained in the Act.
Section 7 refers to the right of pre-emption in respect of
urban immovable property. Section 8 enables the Government
to
411
declare by a notification that there shall be no right of
pre-emption in any local area or with respect to any land or
property or class of land or property or with respect to any
sale or class of sales. Section 10 prevents a party to a
sale along with other joint owners from claiming a right to
pre-emption. In respect of land sold by a member of an
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agricultural tribe, section 14 provides that no person who
is not a member of the same agricultural tribe as the vendor
shall have a right of pre-emption. We have already extracted
section 15. Section 16 refers to the vesting of the right of
pre-emption in the case of an urban immovable property
Section 17 prescribes how the right of pre-emption may be
exercised where several persons are entitled to such right.
Other provisions deal with the procedure to be followed for
the exercise of the right of pre-emption.
Now, to the question at issue and first, a word about
interpretation. Whether it is the Constitution that is
expounded or the constitutional validity of a statute that
is considered, a cardinal rule is to look to the Preamble to
the Constitution as the guiding light and to the Directive
Principles of State Policy as the Book of Interpretation. me
Preamble embodies and expresses the hopes and aspirations of
the people. The Directive Principles set out proximate
goals. When we go about the task of examining statutes
against the Constitution, it is through these glasses that
we must look, ’distant vision’ or ’near vision’. The
Constitution being sui-generis, where Constitutional issues
are under consideration, narrow interpretative rules which
may have relevance when legislative enactments are
interpreted may be misplaced. Originally the Preamble to the
Constitution proclaimed the resolution of the people of
India to constitute India into ’a Sovereign Democratic
Republic’ and set forth ’Justice, Liberty, Equality and
Fraternity’, the very rights mentioned in the French
Declarations of the Rights of Man as our hopes and
aspirations. That was in 1950 when we had just emerged from
the colonial-feudal rule. Time passed. The people’s hopes
and aspirations grew. In 1977 the 42nd amendment proclaimed
India as a Socialist Republic. The word ’socialist’ was
introduced into the Preamble to the Constitution. The
implication of the introduction of the word ’socialist’,
which has now become the centre of the hopes and aspirations
of the people a beacon to guide and inspire all that is
enshrined in the
412
articles of the Constitution -, is clearly to set up a
"vibrant throbbing socialist welfare society" in the place
of a "Feudal exploited society". Whatever article of the
Constitution it is that we seek to interpret, whatever
statute it is whose constitutional validity is sought to be
questioned, we must strive to give such an interpretation as
will promote the march and progress towards a Socialistic
Democratic State. For example, when we consider the question
whether a statute offends Article 14 of the Constitution we
must also consider whether a classification that the
legislature may have made is consistent with the socialist
goals set out in the Preamble and the Directive Principles
enumerated in Part IV of the Constitution. A classification
which is not in tune with the Constitution is per se
unreasonable and cannot be permitted. With these general
ennunciations we may now examine the questions raised in
these writ petitions.
We may first refer to two decisions of this court where
the court had occasion to consider the question of the
constitutional validity of the right of pre-emption
incorporated in the Rewa State Pre-emption Act and the
Punjab Pre-emption Act in relation to Art. 19(1)(f) of the
Constitution.
In Bhau Ram v. B. Baijnath Singh [1962] Suppl, 3
S.C.R. 724, a Constitution Bench of this court had occasion
to consider the question whether a provision of the Rewa
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State Pre-emption Act which gave a right of pre-emption
based on vicinage and the provisions of the Punjab Pre-
emption Act, 1913 which gave a right of pre-emption to co-
sharers offended Art.19(1)(f) of the Constitution. It was
held that a right of pre-emption by vicinage offended
Art.19(1)(f) and that a right of pre-emption in favour of
co-sharers did not. While dealing with the provision of the
Rewa Act relating to pre-emption by vicinage, the
Constitution Bench not only held that the right to pre-
emption by vicinage offended Art. 19(1)(f), but also
appeared to indicate that the right might also offend the
fundamental right guaranteed by Art.15. Wanchoo, J.,
speaking for the court said :
"Before the Constitution came into force, the
statutes if they were passed by competent
authority, could not be challenged; but we have
now to judge the reason ableness of these statutes
in
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the light of the fundamental rights guaranteed to
the citizens of this country by the Constitution.
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 of class of
people and in those times a right of pre-emption
which would oust a stranger from the neighbourhood
may have been tolerable or reasonable. But the
constitution now prohibits discrimination against
any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them under
Art. 15 and guarantees a right to every citizen to
acquire, hold and dispose of property, subject
only to restrictions which may be reasonable and
in the interests of the general public. Though
therefore the ostensible reason for pre-emption
may be vicinage, the real reason behind the law
was to prevent a stranger from acquiring property
in any area which had been populated by a
particular fraternity or class of people. In
effect, therefore, the law of pre-emption based on
vicinage was really meant to prevent strangers
i.e. people belonging to different religion, race
or caste, from acquiring property. Such division
of society now into groups and exclusion of
strangers from any locality cannot be considered
reasonable, and the main reason therefore which
sustained the law of pre-emption based on vicinage
in previous times can have no force now and the
law must be held to impose an unreasonable
restriction on the right to acquire, hold and
dispose of property as now guranteed under
Art.19(1)(f), for it is impossible to see such
restrictions as reasonable and in the interests of
the general public in the state of society in the
present day."
Considering the question relating to the right of pre-
emption given to co-sharers in the Punjab Pre-emption Act,
1913, the court observed :
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"The question as to the constitutionality of a law
of pre-emption in favour of a co-sharer has been
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considered by a number of High Courts and the
constitutionality has been uniformly upheld. We
have no doubt that a law giving such a right
imposes a reasonable restriction which is in the
interest of the general public. If an outsider is
introduced is a co-sharer in a property it will
make common management extremely difficult and
destroy the benefits of ownership in common. The
result of the law of pre-emption in favour of a
co-sharer is that if sales take place the property
may eventually come into the hands of one co-
sharer as full owner and that would naturally be a
great advantage the advantage is all the greater
in the case of a residential house and s.16 is
concerned with urban property; for the
introduction of an outsider in a residential house
would lead to all kinds of complications. The
advantages arising from such a law of pre-emption
are clear and in our opinion outweight the
disadvantages which the vendor may suffer on
account of his inability to sell the property to
whomsoever he pleases. The vendee also cannot be
said to suffer much by such a law because he is
merely deprived of the right of owning an
undivided share of the property. On the whole it
seems to us that a right of pre-emption based on
co-sharership is a reasonable restriction on the
right to acquire, hold and dispose of property and
is in the interests of the general public.
In Bhau Ram’s case, there was also a question relating to
the right of pre-emption granted by s.174 of the Berar Land
Revenue Code in favour of occupants in a survey number in
respect of transfers of interests in that survey number.
Referring to the provisions of the Berar Land Revenue Code,
it was held that the law of pre-emption in s.174 applied to
those who were co-sharers or akin to co-sharers and was not
an unreasonable restriction on the right guaranteed by
Art.19(1)(f).
The question whether section 15(1)(a) of the Punjab
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Pre-emption Act, 1913 (as amended in 1960) which granted a
right of pre-emption in respect of agricultural land and
village immovable property (where the sale was by a sole
owner) to the son or daughter or son’s son or daughter’s son
of the vendor, offended the fundamental right guaranteed by
Art.19(1)(f) of the Constitution was considered by a
Constitution Bench of the court in Ram Sarup v. Munshi and
Ora. (supra). Before the Constitution Bench, the following
five grounds were relied upon to vindicate the
reasonableness of sections 15 and 16 of the Act :
(i) to preserve the integrity of the village and
the village community;
(ii) to avoid fragmentation of holdings;
(iii) to implement the agnatic theory of the law
of succession;
(iv) to reduce the chances of litigation and
friction and to promote public order and domestic
confort: and
(v) to promote private and public decency and
convenience.
It was held that the ground of "promotion of public order
and domestic comfort" and "private and public decency and
convenience" had relevance to urban immovable property which
was dealt with in s.16 and not to agricultural property
which was dealt with in s.15. It also held that the ground
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of avoidance of chances of litigation had no relevance and
further that the ground of avoidance of fragmentation of
holdings was of no assistance to sustain the claim of a son
to pre-empt in the event of a sale by a sole owner-father as
that criterion was of real relevance in the case of the
right of pre-emption given to co-sharers and the like. In
regard to the ground relating to preservation of the
integrity of the village and the village community, the
court held that it was not a final and conclusive answer to
the argument against the reasonableness of the provision. me
court however upheld s.l5(1)(a) as a reasonable restriction
in the interest of the general public on the basis of the
third ground which was that
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the next in succession should have the chance of retaining
the property in the family. It was observed that the son and
other members of the family though not entitled to a present
interest in the property or a right to prevent the
alienation, would nevertheless have a legitimate expectation
founded on and promoted by the consciousness of the
community. It was observed that if the social consciousness
did engender such feelings, and taking into account the very
strong sentimental value that was attached to the continued
possession of family property in the Punjab, it could not be
said that the restriction on the right of free alienation
imposed by s.l5(1)(a) limited as it was to a small class of
near relations of the vendor was either unreasonable or not
in the interest of the general public.
In Sant Ram v. Labh Singh, A.I.R. 1965 S.C. 314, it was
held that the reasons given by the court in Bhau Ram’s case
tc invalidate the right of pre-emption based on vicinage
held good to invalidate such a custom also.
In the first case, (Bhau Ram’s case), the right of
preemption given to co-sharers was held to be a reasonable
restriction on the right to held, acquire or dispose of
property conferred by Art. 19(1)(f) of the Constitution.
What has been said there to uphold the right of pre-emption
granted to a co-sharer as a reasonable restriction on the
right to property applies with the same force to justify the
classification of co-sharers as a class by themselves for
the purpose of vesting in them the right of pre-emption. We
do not think that it is necessary to re-state what has been
said in that case. We endorse the views expressed therein.
The right of pre-emption vested in a tenant can also be
easily sustained. There can be no denying that the movement
of all land reform legislations has been towards enabling
the tiller of the soil to obtain proprietory right in the
soil so that he may not be disturbed from possession of the
land and deprived of his livelihood by a superior
proprietor. The right of pre-emption in favour of a tenant
granted by the Act is only another instance of a legislation
aimed at protecting the tenant. There can be no doubt that
tenants form a distinct class by themselves and the right of
pre-emption granted in their favour is reasonable and in the
public interest. We are, therefore, of the view that clause
’fourthly’ of s.15(1)(a), clauses ’fourthly
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and fifthly’ of s.15(1)(b) and clause ’fourthly’ of s. 15(1)
(c) are valid and do not infringe either Art. 14 or 15 of
the Constitution.
We now come to the primary question whether the right
of pre-emption based on consanguinity and contained in the
remaining clauses of sec.15(1)(a), (b) and (c) and sec.
15(2)(a) and (b) can be sustained. Earlier we have briefly
indicated the character of the right of pre-emption based on
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consaguinity. In the counter affidavit, the classification
in favour of the persons mentioned in 9.15 is sought to be
justified in the following manner
"The classifications has been made on reasonable
basis in the interests of the public :-
(i) to preserve integrity of village community;
(ii) to avoid fragmentation of holdings;
(iii) to implement the agnatic theory of
succession;
(iv) to promote public and private decency;
(v) to facilitate tenants to acquire ownership
rights;
(vi) to reduce litigation consequent to
introduction of an outsider on family property or
jointly owned property.
These were the very factors which were put forward to
support the plea in Ram Sarup’s case that s.15(1)(a) was a
reasonable restriction on the right to hold acquire or
dispose of property conferred by Art. 19(1)(f) of the
Constitution. As pointed out in Ram Sarup’s case, avoidance
of fragmentation of holdings, promotion of private and
public decency and reduction of litigation do not seem to
have any relevance to the right of pre-emption, vested in
the kinsfolk of the vendor. The real question is whether a
classification in favour of the kinsfolk of the vendor can
be considered reasonable so as to justify a right of pre-
emption in their
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favour for the purpose of preserving the integrity of the
village community or implementing the agnatic theory of
succession or preserving the unity and integrity of the
family, We do not think that the classification can be
considered reasonable in the circumstances prevailing today
whatever Justification there might have been for the
classification in 1960 when the legislature amended s.15 of
the Punjab Pre-emption Act. Apart from the courts
characterising the right as ’archaic’, ’feudal’, ’piratical’
’outmoded’ and so on, the Punjab legislature recognised the
incongruity of the right in modern times and repealed it in
1972. We find it difficult to uphold the classification on
the basis of unity and integrity of either the village
community or the family or on the basis of the agnatic
theory of succession which is again in a way connected with
the integrity of the family. It is well known and, we may
take judicial notice of it, that not only has there been a
green and a white revolution in Haryana, this State is also
in the process of an industrial revolution. Industries have
sprung up through out the State and the population has been
in a State of constant flux and movement. The traditional
integrity of the village and the family have now become old
wives’ tales. Tribal loyalities have disappeared and family
ties have weakened. Such is the effect of the march of
history and the consequence of industrialisation,
mechianisation of agriculture, development of marketing and
trade, allurement of professions and office, employment
opportunity elsewhere and so on. The processes of history
cannot be reversed and we cannot hark back to the
traditional rural-family-oriented society. Quite apart from
the break-up of the integrity of village life and family
life, it is to be noticed that the property in respect of
which the right of pre-emption is to be exercised is
property of which the vendor or the vendors, as the case may
be, have rights of full ownership and their kinsfolk have no
present right whatsoever. The right of pre-emption is not to
be confused with the right to question the alienation of
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ancestral immovable property which the male lineal
descendants of the vendor have under the Punjab Custom
(Power to Contest) Act, 1920. The right of pre-emption is
now entirely a statutory right and dissociated from custom
or personal law.
A scrutiny of the list of persons in whose favour the
right of pre-emption is vested under s.15 reveals certain
419
glaring facts which appear to detract from the theory of
preservation of the integrity of the family and the theory
of agnatic right of succession. First we notice that neither
the father nor the mother figures in the list though the
father’s brother does. me son’s daughter and the daughter’s
brother does. The son’s daughter and the daughter’s daughter
do not appear though the son’s son and daughter’s son do.
The sister and the sister’s son are excluded, though the
brother and the brother’s son are included. Thus relatives
of the same degree are excluded either because they are
women or because they are related through women. It is not
as if women and those related through women are altogether
excluded because the daughter and daughter’s son are
included. If the daughter is to be treated on a par with the
son and the daughter’s son is treated on a par with the
son’s son it does not appear logical why the father’s son
(brother) should be included and not the father’s daughter
(sister). These are but a few of the intrinsic
contradictions that appear in the list of relatives
mentioned in s.15 as entitled to the right of pre-emption.
It is ununderstandable why a son’s daughter, a daughter’s
daughter, a sister or a sister’s son should have no right of
pre-emption whereas a father’s brother’s son has that right.
As s.15 star, s, if the sole owner of a property sells it to
his own father, mother, sister, sister’s son, daughter’s
daughter or son’s daughter, the sale can be defeated by the
vendor’s father’s brother’s son claiming a right of pre-
emption.
We are thus unable to find any justification for the
classification contained in section 15 of the Punjab
Preemption Act of the kinsfolk entitled to pre-emption. The
right of pre-emption based on consanguinity is a relie of
the feudal . It is totally inconsistent with the
Constitutional me. It is inconsistent with modern Ideas. The
reasons such justified its recognition quarter of a century
ago, namely, the preservation of the integrity of rural
society, . unity of family life and the agnatic theory of
succession are today irrelevant. me list of kinsfolk
mentioned as entitled to pre-emption is intrinsically
defective and self-contradictory. There is, therefore, no
reasonable classification and clauses ’First’, ’Secondly’,
and ’ Thirdly’ of s.l5(1)(a), ’First’, ’Secondly’ and
’Thirdly’, of s.15(1)(b), Clauses ’First’, ’Secondly’ and
’thirdly’ of s.15(1)(c) and the whole of section 15(2) are,
therefore, declared ultravires the Constitution.
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We are told that in some cases suits are pending in
various courts and, where decrees have been passed, appeals
are pending in appellate courts. Such suits and appeals will
now be disposed of in accordance with the declaration
granted by us. We are told that there are a few cases where
suits have been decreed and the decrees have become final,
no appeals having been filed against those decrees. The
decrees will be binding inter-partes and the declaration
granted by us will be of no avail to the parties thereto.
There will be no order regarding costs.
M.L.A.
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