Ahmadi, J. - (1.) Delay condoned. Special leave granted.
(2.) The constitutional validity of Section 15(1)(a) of the Punjab Pre-emption Act, 1913 was challenged on the ground that it offended the fundamental right guaranteed by Article 19(1)(f) in Ram Sarup v. Munshi, (1963) 3 SCR 858. A Constitution Bench of this Court upheld the validity holding that there was no infringement of Article -19(1)(f) of the Constitution. Thereafter, a host of writ petitions were filed in this Court under Article 32 of the Constitution challenging the constitutional validity of Section 15 on the ground that it infringed Articles 14 and 15 of the Constitution. It may be mentioned that the mother State, the State of Punjab, had repealed the Act in 1973 but it continued to be in force in the State of Haryana which prior to 1966 was a part of the State of Punjab. Section 15 of the 1913 Act, as it originally stood, underwent substantial changes in 1960 and as amended read as under: "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 daughter's son of the vendor; Secondly, in the brother or brother's son of the vendor; Thirdly, in the father's brother or father's brother's son of the vendor; Fourthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof; (b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly- First, in the sons or daughters or sons' or daughters' sons of the vendor or vendors; Secondly, in the brothers or brother's sons of the vendor or vendors; Thirdly, in the father's brother or father's brother's sons of the vendor or vendors; Fourthly, in the other co-sharers; Fifthly, the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof; (c) where the sale is of land or property owned jointly and is made by all the cosharers jointly- First, in the sons or daughters or sons'sons or daughters' sons of the vendors; Secondly, in the brothers or brother's sons of the vendors; Thirdly, in the father's brothers or father's brother's sons of the vendors; Fourthly, in the tenants, who hold under tenancy of the vendors or any one of them the land or property sold or a part therof. (2) Not with standing anything contained in sub-section (l): (a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest: (i) if the sale is by such female, in her brother or brother's son; (ii) if the sale is by the son or daughter of such female, in the mother's brothers or the mother's brother's sons of the vendor or vendors; (b) where the sale is by a female of land or property to which she has succeeded through her husband, or through her son in case the son has inherited the land or property sold from his father, the right of pre-emption shall vest- First, in the son or daughter of such husband of the female; Secondly, in the husband's brother or husband's brother's son of such female." This Court in Atam Prakash v. State of Haryana, (1986) 2 SCC 249, held that the right of pre-emption given to co-sharers as well as to a tenant can be justified as they constitute a class by themselves. This Court, therefore, upheld the constitutional validity of clause 'fourthly' of Section 15(1)(a). Clauses 'fourthly' and 'fifthly' of Section 15(1)(b) and clause 'fourthly' of Section 15(1)(c) as valid and not infringing Article 14 or 15 of the Constitution. This Court, however, did not find any justification for the classification contained in Section 15 which conferred a right of pre-emption on the kinsfolk. The right of pre-emption based on consanguinity was held to be a relic of the feudal past totally inconsistent with the constitutional philosophy and scheme. It also found the list of kinsfolk entitled to preemption as intrinsically defective and self contradictory. Finding no reasonable classification it struck down clauses 'first', 'secondly' and 'thirdly' of Section 15(1)(a).Clauses 'first', 'secondly' and 'thirdly' of Section 15(1)(b) and clauses 'first', 'secondly' and 'thirdly'of Section 15(1)(c) and the entire Section 15(2) as ultra vires the Constitution. The right of pre-emption in regard to a cosharer was upheld on the consideration that if an outsider is introduced as a co-sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common. The right of preemption vested in a tenant was sustained on the ground that land reform legislations in regard to the tiller of the soil to obtain proprietary right in the soil with a view to ensuring his continuance in possession of the land and consequently of his livelihood without threat or disturbance from the superior proprietor. The right of pre-emption granted to a tenant was taken as another instance of a legislation aimed at protecting the tenant's interest in the land. Holding that the co-sharers and the tenants constituted a distinct class by themselves, the right of preemption conferred on them was upheld as reasonable and in public interest. In taking this view strong reliance was placed on the ratio of the decision of this Court in Bhau Ram v. B. Baijnath Singh, (1962) Suppl. SCR 724, wherein the vires of a provision of the Rewa State Pre-emption Act which conferred a right of pre-emption based on vicinage and the right of pre-emption conferred on co-sharers and the Punjab Pre-emption Act, 1913 were challenged on the ground of infraction of Article 19(1)(f) of the Constitution. In that case it was held that a right of pre-emption by vicinage offended Article 19(1)(f) of the Constitution but a similar right conferred on co-sharers was intra vires Article 19(1)(f) of the Constitution. In that case also this Court held that the right of pre-emption vested in co-sharers was a reasonable restriction on the right to hold, acquire or dispose of property conferred by Article 19(1)(f) of the Constitution. In Atam Prakash's case (supra), this Court, therefore, held that what was said about the right of preemption granted to co-sharers in relation to Article 19(1)(f) of the Constitution applied with equal force to justify the classification in relation to Articles 14 and 15 of the Constitution.
(3.) After the surgery, Section 15 underwent at the hands of this Court removing the offending parts in Atam Prakash's case (supra) what survives of Section 15 is that in the case of sale of agricultural land and village immovable property by a sole owner, the tenant alone can exercise the right of preemption. Where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly, only the other co-sharers and the tenants can exercise the right of pre-emption. Where the sale is of a land or property owned jointly and is made by all the cosharers jointly, the right to pre-empt survives to the tenants only. Since in the present case, we are concerned with sale by a single co-sharer and not by all the co-sharers jointly, the remaining part of Section 15(1)(b), with which we are concerned, reads as under: "15(b). 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- (b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly ********** Fourthly, in the other co-sharers; Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof." Counsel for the appellant submitted that since the suit land belonged to more than one cosharer and had not been sold jointly by all the co-sharers, he, as a co-sharer, was entitled to claim the right of pre-emption under clause 'fourthly' of Section 15(1)(b). A similar question came up before this Court in Jagdish v. Nathi Mal Kejriwal, (1986) 4 SCC 510, wherein a two-Judge Bench of this Court negatived the contention in the following words (para 3): "In order to understand the meaning of the words 'other co-sharers' in Section 1 5 (1)(b) we have to read the Act as it stood. before the decision in Atam Prakash's case, (supra). It is seen that the expression 'other co-sharers' in clause 'Fourthly' of Section 15(1)(b) of the Act refers to only those co-sharers who do not fall under clause 'First' or 'Secondly' or 'Thirdly' of Section 15(1)(b) of the Act. Since the petitioners admittedly fall either under clause 'First' or under clause 'Secondly' of Section 15(1) (b) of the Act they are clearly outside the scope of clause 'Fourthly'. Therefore, the petitioners cannot claim the right of pre-emption under clause 'Fourthly'. We do not, therefore, find any substance in this contention....." In the present case also the appellant seeks to exercise the right of pre-emption as a co-sharer i.e. father's brother's son of the vendors. His contention is that he falls within the expression 'other co-sharers' in clause 'Fourthly' of S. 15(1)(b) and is, therefore, entitled to exercise the right of pre-emption conferrred on him by that provision. The Courts below have negatived this contention solely on the ground that it cannot stand after the pronouncement of this Court in the case of Jagdish (supra). Counsel for the appellant, however, contended that the interpretation placed by the two-Judge Bench on the expression 'other co-sharers' in Section 15(1)(b) requires reconsideration as it leads to certain anomalous situation e.g. a sister who is a co-sharer can claim preemption while her brother , cannot or a daughter's daughter of the vendor can claim pre-emption but not the son.;