KRISHEN LAL Vs. BABOO RAJ

JUDGEMENT

(1.) THE appellant brought a suit for possession of agricultural land against its vendor and vendee on the basis of right of prior purchase. Both the vendor and the vendee died during the pendency of the proceedings in the two courts below and their legal representatives were brought on record. Respondents 1 to 7 in this appeal are the legal representatives of the vendee and respondents 8 to 14 are the legal representatives of the vendor. The suit was decreed by the trial court but dismissed by the lower appellate court, hence the second appeal.

(2.) A preliminary objection has been taken by Mr. Sethi, the learned counsel for respondents 1 to 7 that the appeal is liable to be dismissed in view of Ordinance No. GSR 16 E) dated 8th January, 1976 issued by the President of India in exercise of powers vested in him under Article 359 of the Constitution of India (hereinafter referred to as the Constitution) suspending fundamental rights guaranteed to citizens of India under Article 359 of the Constitution, or in any case the suit is liable to lie over till the said order remains in force. To be more precise the objection raised by the learned counsel is that right to purchase property by pre -empting a sale bring a fundamental right to acquire or hold property within the meaning of Clause (i) Art : 19(1) of the Constitution, a preempting is debarred from moving a court for enforcing his said right by filing a suit for pre emption till the aforesaid Presidential Order suspending such a right continues to remain in force. In order to appreciate the contention raised by the learned counsel it would be useful to reproduce in extenso the said Presidential Order, which reads thus : "GSR 16 (E) In exercise of the powers conferred by Clause (1) of Article 359 of the Constitution, the President hereby declares that the Right of any person to move any Court for the enforcement of the Right conferred Article 19 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of Emergency made under Clause (1) of Article 352 of the Constitution of the 3rd December, 1971 and on 25th June, 1975 are both inforce. This order extends to the whole of territory of India"

(3.) A plain reading of the Order would show that what has been taken away by its command is the right of a citizen to move a court for enforcing any fundamental right guaranteed to him under Art. 19 of the Constitution either byway of a fresh proceedings or pending proceedings. It is therefore manifest that before the enforcement of a fundamental right is hit by the mischief of the presidential Order, the same must fall within the four corners of Art. 19 of the constitution. In other words Art 19 of the constitution being sine quanon for the application of the said Presidential order, its application would be foreign to a case which is not a case of enforcement of a fundamental right within the meaning of Art 19 of the Constitution. The most crucial question which therefore needs to be answered is whether the appellant is seeking enforcement of the fundamental right of acquiring or holding property within the meaning of Clause (f) of Art. 1911 of the Constitution by filing the present suit for possession of land under the provisions of the Right of Prior Purchase Act.