TMI Blog1986 (2) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 The State of origin of the Punjab Pre-emption Act, the State of Punjab, has repealed the Act in 1973.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The Punjab Pre-emption Act, 1913 repealed the Punjab Pre-emption Act of 1905 and sec.12 of the 1905 Act which corresponded to sec.15 of the 1913 Act was as follows:- 12.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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave 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 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 glaring facts which a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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