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1964 (4) TMI 123 - SUPREME COURT OF INDIA

1964 (4) TMI 123 - SUPREME COURT OF INDIA - 1965 AIR 314, 1964 (7) SCR 756 - 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. Kaise .....

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He also held that Labh Singh was entitled to preempt and had performed the Talabs. 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. .....

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swer, the second appeal was dismissed. The High Court, however, certified the 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 p .....

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his ruling applies the present appeal must succeed. Mr. B. C. Misra, who appears 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 t .....

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sider the question of the validity of the customary law of pre- emption based 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 w .....

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o far as they are inconsistent with the provisions of this Part, shall, to the 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 .....

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use it is intended to define the word "law" in the second clause. According 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 "la .....

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