- (1.) The archaic right of pre-emption based on consanguinity is in question in the several thousand writ petitions under Art. 32 of the Constitution. The constitutional validity of S. 15 of the Punjab Pre-emption Act, 1913 as applicable in the State of Haryana which incorporates this right is challenged. The State of origin of the Punjab Pre-emption Act, the State of Punjab, has repealed the Act in 1973. The Act, however, continues to be in force in the State of Haryana which originally formed part of the State of Punjab. The vires of S. 15(1)(a) of the Act was questioned in this Court in Ram Sarup v. Munshi, (1963) 3 SCR 858 : (AIR 1963 SC 553) on the ground that it offended the fundamental right guaranteed by Art. 19(1)(f) of the Constitution. It was ruled by a Constitution Bench that there was no infringement of Art. 19(1)(f) and that the provision was valid. The validity of S. 15 is now impugned primarily on the ground that it offends Arts. 14 and 15 of the Constitution.
(2.) The right of pre-emption based on consanguinity has been variously described by learned judges as 'feudal', 'piratical', 'tribal'. weak', easily defeated', etc. Fusing as it does the ties of blood and soil, it cannot be doubted that the right is antiquated and feudal in origin and in character. The right is very much like another right of feudal origin and character which subsisted here and there in India until recently, particularly amongst the princely families, namely, the right of succession by primogeniture. It is a well-known characteristic of feudalism that the control of the most important productive resource, land, should continue in the hands of the same social and family group. The right of pre-emption based on consanguinity is a consequence flowing out of this characteristic. It. is entirely inconsistent with our constitutional scheme. Since the Forty-Second Amendment. India is a socialist republic in which feudalism can obviously have no place and must go. Our Constitution now proclaims India as a sovereign, socialist, secular democratic republic in which the right to equality before the law and the equal protection of the laws are guaranteed and all citizens are assured that the State shall not discriminate on grounds only of religion, race, caste, sex, place of birth or any of them. The citizens are also assured of the right to move freely throughout the territory of India, to reside or settle in any part of the territory of India and to practise any profession or to carry on any occupation, trade or business. The State is further enjoined to direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. The right to property has also now ceased to be a fundamental right since the Forty-Fourth Amendment. The question now is whether this adjunct of the right to property, perhaps perfectly reasonable in a feudal society, can be constitutionally sustained in a society dedicated to socialistic principles. The question has to be examined with reference to Arts. 14, 15 and 19(1)(d) and (g), in the background of the Preamble to the Constitution and Art. 39(c) of the Directive Principles of State Policy. We think that the question has to be primarily answered with reference to Art. 14.
(3.) The Punjab Pre-emption Act, 1913 repealed the Punjab Pre-emption Act of 1905 and S. 12 of the 1905 Act which corresponded to S. 15 of the 1913 Act was as follows : " 12. Subject to the provisions of S. 11, the right of pre-emption in respect of agricultural land and village immovable property shall vest (a) in the case of the sale of such land or property by a sole owner or occupancy tenant, or when such land or property is held jointly, by the co-sharers, in the persons who but for such sale would be entitled to inherit the property in the event of his or their decease, in order of succession; (b) in the case of a sale of a share of such land or property held jointly - first in the lineal descendants of the vendor in the male line in order of succession; secondly, in the co-sharers, if any, who are agnates, in order of succession; thirdly, in the persons described in subclause (a) of this sub-section and not hereinbefore provided for; fourthly, in the co-sharers, (i) jointly. (ii) severally; (c) As section 15(c), Act of 1913, with the addition of words (i) jointly. (ii) severally, in secondly, thirdly and fourthly. Explanation 1.- In the case of sale of a right of occupancy, clauses (a), (b) and (c) of this sub-section, with the exception of sub-clause fourthly of clause (c), shall be applicable. Explanation 2. - In the case of a sale by a female of property to which she has succeeded through her husband, son, brother or father, the word 'agnates' in this section shall mean the agnates of the person through whom she has so succeeded." Section 15 of the Punjab Pre-emption Act, 1913 as it originally stood, was as follows : "15. Subject to the provisions of S. 14 the fight of pre-emption in respect of agricultural land and village immovable property shall vest (a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold : (b) where the sale is of a share out of joint land or property, and is, not made by all the co-sharers jointly,- firstly, in the lineal descendants of the vendor in order of succession; secondly, in the co-sharers, if any, who are agnates, in order of succession; thirdly in the persons, not included under firstly or secondly, above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold; fourthly, in the co-sharers: (c) If no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it,- firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold in the inferior proprietors, and when the inferior right is sold, in the superior proprietors; secondly, in the owners of the patti or other sub-division of the estate within the limits of which such land or property is situate; thirdly, in the owners of the estate; fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or property; fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situated. Explanation - In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother or father, the word 'agnates' in this section shall mean the agnates of the person through whom she has so succeeded." In 1960, there were substantial amendments to the Punjab Pre-emption Act and, after amendment, S. 15 was as follows - "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 cosharers jointly First, in the sons or daughters or son's son 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, in 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 co-sharers jointly First, in the sons or daughters or sons or daughters' sons of the vendors; Secondly, in the brothers or brother's sons of the vendors; Thirdly, in the father's brother's 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 thereof. (2) Notwithstanding anything contained in sub-section (1) (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.";