BABULAL AND OTHERS Vs. GOWARDHANDAS AND OTHERS
LAWS(MPH)-1955-10-16
HIGH COURT OF MADHYA PRADESH
Decided on October 18,1955

Babulal and others Appellant
VERSUS
Gowardhandas And Others Respondents

JUDGEMENT

Dixit, J. - (1.) THE common question raised in all these seven cases and which has been referred to us for determination is whether sub -ss. (1), (5) and (6) of S. 12. Gwalior Pre -emption Act, Samvat 1992 are repugnant to Arts. 19 (1) (f) and 14 of the Constitution of India and are as such void, and whether for that reason the right of preemption can be enforced in the suits out of which the six appeals and the revision petition arise.
(2.) THE Gwalior Pre -emption Act was enacted in the former Gwalior State in 1936. On the formation of Madhya Bharat the Act was continued in those territories of Madhya Bharat which formerly comprised the Gwalior State, by virtue of the provisions of Madhya Bharat Regulation of Government Act, 1948 (Act I of 1943). Under Art. 372 of the Constitution, the Act is continuing in force in that part of Madhya Bharat which was formerly Gwalior State. The Act deals with the right of pre -emption accruing on sale of immovable property other than agricultural land. Section 12 of the Act specifies the classes of persons successively entitled to exercise the right of pre -emption. Under sub -s. (1) the first right of pre -emption is given to co -sharers in the property. Sub -s. (5) specifies the fifth class of persons who are entitled to exercise the right of preemption. They are the neighbors whose properties are dominant, the property alienated being servient and vice versa. Under sub -s. (6) the right of pre -emption vests lastly in persons whose immovable properties are contiguous to the property sold. In five of the cases, namely, Civil S.A. No. 3 of 1949, Civil Revn. No. 145 of 1950, Civil S.A. No. 2 of 1953, Civil S.A. No. 171 of 1953 and Civil S.A. No. 52 of 1954, the sales in question took place prior to the Constitution and the suits to enforce the right of pre -emption were instituted before 26 -1 -1950. In Civil S.A. No. 3 of 1949 the appellant pre -emptor's claim has been dismissed by both the Courts below. In Civil Revn. No. 145 of 1950 the pre -emptors claim was decreed by the trial Court on 3 -1 -1950 and affirmed in appeal. In Civil S.A. No. 2 of 1953 the pre -emptor's claim was decreed by the trial Court on 30 -5 -1951 but was rejected in first appeal on 26 -9 -1952. In Civil S. A. No. 171 of 1953 the pre -emptor's claim was dismissed by the trial Court on 30 -10 -1950 but was allowed in first appeal on 10th August 1953. In Civil S.A. No. 52 of 1954 a decree in favour of the pre -emptor was passed on 27 -8 -1952 and this was affirmed in first appeal on 11 -2 -1952. In the remaining two appeals, namely, Civil S.A. No. 93 of 1954 and Civil S.A. No. 146 of 1954 the sales in question took place after the coming into force of the Constitution. In all these cases the right to pre -empt is claimed on the basis of vicinage. In Civil S.A. No. 171 of 1953, Civil S.A. No. 93 of 1954 and Civil S.A. No. 146 of 1954 the claim is also founded on the basis of co -ownership and easement. The attack on the validity of sub -ss. (1), (5) and (6) of S. 12 of the Act is from the vendors and the vendees and it has been urged on their behalf that these sub -sections violate the fundamental right of the vendor to dispose of the property to whomsoever and for whatsoever consideration, he likes, and also the right of the vendee to hold the property which he has acquired by purchase; that these restrictions are not reasonable restrictions within the meaning of Art. 19 (5) and cannot be allowed to stand. It is further said that the entire Act conferring on the persons mentioned in S. 12 the right of pre -emption in respect of sales of immovable property other than agricultural land is hit by Art. 14 inasmuch as it is in force only in one part of the State of Madhya Bharat, namely the former Gwalior State and that no law of preemption of any kind in respect of urban immovable property is prevalent in other parts of the State and that this differentiation is not based upon a reasonable classification. In reply learned counsel appearing on behalf of the pre -emptors contended that the right of pre -emption was not a personal right but was a right attached to the property and hence there could he no question of infringement of any right of an individual under Art. 19 (1) (f) to acquire, hold and dispose of property. Reliance was placed on the decision of the Supreme Court in - 'Audh Beharl v. Gajadhar', : AIR 1954 SC 417 (A), to support the proposition that the right of preemption was a right attached to property and not a personal right. It was also submitted in the alternative that the right of pre -emption did not in any way affect the right of the vendor. He was at liberty to sell the property to any one he liked after giving an opportunity to the pre -emptor to purchase the property at the price named by him; that the impugned provisions only gave priority of acquisition to certain persons and did not prohibit any person from acquiring or holding property. It was further said that if the right of preemption lettered in any way the fundamental right of the vendor to dispose of property and the right of the vendee to acquire and hold it, the restrictions were reasonable inasmuch as their object was to preserve the homogeneity of the community, to exclude strangers from becoming owners of the property and thus prevent the possibility of disturbance from him in the enjoyment of the property by co -sharers or by neighbors whose properties are dominant or servant. Learned counsel for the pre -emptors relying on - "Ramjilal v. Income -tax Officer, Mohindar Garh', : AIR 1951 SC 97 (B), proceeded to argue that if the Gwalior Pre -emption Act was in. force in a part of Madhya Bharat and if there was no similar law of pre -emption in other parts, the Act could not be declared to be void under Art. 14. In case in which the sale in question took place before 26 -1 -1950 and the suits were also filed before that date it was also argued that on the date of the sale the vendor or the vendee had not the fundamental right guaranteed by Art. 19 (1) (f) or Art. 14; that the Constitution was prospective and not retrospective and the right to enforce a right of pre -emption which accrued by reason of a sale before the date of the Constitution, remained unaffected.
(3.) MR . Chitale, learned Advocate -General who appeared in response to a notice issued by this Court supported the contention of the vendors and the vendees that the right of pre -emption infringed the fundamental right of the vendors and the vendees under Art. 19 (1) (f) and that the restrictions imposed by Cls. (5) and (6) of S. 12 of the Act on the power of disposition or holding could not be regarded as reasonable. The learned Advocate -General argued that the conditions and the society which gave birth to the right of pre -emption no longer existed; that the right of pre -emption based on contiguity or easement was altogether out of keeping with the needs, objects and aims of the present day dynamic society; that though there might be some justification for allowing a co -sharer to pre -empt the property, there could be none whatsoever for permitting a person to purchase a property in preference to others merely because he happened to be an owner of a property contiguous to the property sold or the owner of a property having a right of easement in relation to the property sold. It was further urged by the learned Advocate -General that the entire Gwalior Pre -emption Act was repugnant to Art. 14 of the Constitution, in that it was in force only in a part of Madhya Bharat; that there was no similar law in other parts of Madhya Bharat and that this differentiation was not based on any reasonable classification. In support of his contention the learned Advocate -General referred us to the - 'State of Rajasthan v. Rao Manohar Singhji', : AIR 1954 SC 297 (C) and distinguished the case of ' : AIR 1951 SC 97 (B), by saying that in 'Ramjilal's case (B)', the Supreme Court considered the question of the validity of a law in force in a portion of a State at the commencement of the Constitution only in relation to pending proceedings, namely, whether the difference in rates of assessment of income -tax on account of pending proceedings being continued according to the law of intergrating States of the Pepsu State was an infringement of Art. 14. The learned Advocate -General maintained that the Gwalior law of pre -emption being repugnant to Art. 14 became void, and inoperative from 26 -1 -1950 and the right of pre -emption given by that Act could not be enforced in respect of any sale taking place after 26 -1 -1950. As to the sales before 26 -1 -1950 and the enforcement of the right of pre -emption accruing on those sales in suits instituted before 26 -1 -1950, the learned Advocate -General on the authority of - K.M. Menon v. State of Bombay', : AIR 1951 SC 128 (D), and other decisions of the Supreme Court in the same Hue contended that Art. 13 (1) of the Constitution could not affect those rights or their enforcement in suits filed before 26 -1 -1950. Mr. Chitale pointed out that the decision of the Rajasthan High Court in - 'Shankerlal v. Poonamchand', AIR 1954 Raj 231 (E), that in a suit instituted before 26 -1 -1950, no decree of preemption could be passed after 26 -1 -1950 ran counter to the Supreme Court's decision in ' : AIR 1954 SC 417 (A), where a claim of pre -emption was on certain facts being established allowed to be decreed after 26 -1 -1950 in a suit filed before that date. The learned Advocate -General submitted that the reasoning of the learned Judges of the Rajasthan High Court that in such a suit no decree could be passed after 26 -1 -1950 because on account of the invalidity of the law of pre -emption the right could not be said to exist on the date of the decree, really begged the question of the invalidity of the law of pre -emption.;


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