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Sant Ram And Ors Versus Labh Singh And Ors

C.A. 299 OF 1964 - Dated:- 15-4-1964 - Gajendragadkar, P.B., Wanchoo, K.N., Hidayatullah, M., Gupta, K.C. Das, And Ayyangar, N. Rajagopala For the appellants : J. P. Goyal,. For the Respondent : B. C. Misra, JUDGMENT: Hidayatullah, J.- In this appeal by certificate from the High Court of Judicature at Allahabad the appellants are the four original defendants in a suit for pre-emption filed by the first respondent. Kaiseri Begam (respondent No. 2) sold a plot and two houses in mohalla Gher Abdul .....

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labs. He, however, dismissed the suit because the sale did not include a strip of land 3 feet 6 inches wide between Labh Singh's house and the property sold. He made no order about costs. There was an appeal by Labh Singh and the present appellants objected. The District Judge, Rampur allowed the appeal and dismissed the cross-objections. The appellants then filed a second appeal in the High Court of Allahabad. Mr. Justice V. D. Bhargava, who heard the appeal, referred the following question .....

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case and the present appeal has been filed. The question which was posed by Mr. Justice V. D. Bhargava was considered by this Court in connection with s.10 of the Rewa State Pre-emption Act, 1946 in Bhau Ram v. B. Baijnath Singh [1962] Supp. 3 S.C.R. 724. This Court held by majority that the law of pre- emption on the ground of vicinage imposed unreasonable restrictions on the right to acquire, hold and to dispose of property guaranteed by Art. 19(1)(f) of the Constitution and was void. It was .....

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ars for Labh Singh attempts to distinguish Bhau Ram's case(1). He contends that the earlier case was concerned with a legislative measure whereas the. present case of pre-emption arises from custom. He refers to the decision in Digambar Singh v. Ahmad Said Khan(1) where the Judicial Committee of the Privy Council has given the early history of the law of pre-emption in village com- munities in India and points out that the law of pre-emption had its origin in the Mohammedan Law and was the r .....

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on vicinage. It is hardly necessary to go into ancient law to discover the sources of the law of pre-emption whether customary or the result of contract or statute. In so far as statute law is concerned Bhau Ram's case [1962] Supp. 3 S.C.R. 724 decides that a law of pre- emption based on vicinage is void. The reasons given by this Court to hold statute law void apply equally to a custom. The only question thus is whether custom as such is affected by Part III dealing with fundamental rights .....

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e extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise re-requires,- (a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) "law in force" includ .....

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ccording to him, the phrase "laws in force" which is used in clause (1) is defined in (3)(b) and that definition alone governs the first clause, and as that definition takes no account of customs or usage, the law of pre-emption based on custom is unaffected by Art. 19(1)(f). In our judgment, the definition of the term "law" must be read with the first clause. If the definition of the phrase "laws in force" had not been given, it is quite clear that the definition o .....

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