M.R.Sharma, J. - (1.) The facts are given in the order of reference and need not be restated. The following question arises for consideration: Whether Sub-section (2) of Section 15 of the Punjab Pre-emption Act, 1913 (hereinafter referred to as the Act) bars the right of pre-emption granted to:-- (i) tenants under Section 15 (1) (a) FOURTHLY of the Act and (ii) co-sharers under Section 15 (1) (b) FOURTHLY of the Act. In order to resolve this controversy, the historical development of the law of preemption deserves to be noticed. In R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628, it was observed as under: "Now when a question arises as to the interpretation to be put on an enactment, what the Court has to do is to ascertain 'the intent of them that make it', and that must of course be gathered from the words actually used in the statute That, however, does not mean that the decision should rest on a literal interpretation of the words used in disregard of all other materials. "The literal construction then", says Maxwell on Interpretation of Statutes, 10th Edition, page 19. "has, in general, but prima facie preference. To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope and object of the whole Act; to consider, according to Lord Coke; (1) What was the law before the Act was passed. (2) What was the mischief or defect for which the law had not provided; (3) What remedy Parliament has appointed; and (4) The reason of the remedy". The reference here is to Heydon's case (1584) 3 Co Rep 7a = 76 ER 637, There are principles well settled, and were applied by this Court in Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 SCR 603 = (AIR 1955 SC 661)." Section 15 of the Act as it stood before it was substituted by Punjab Act No. 10 of 1960, reads as under: "15 (1) Subject to the provisions of Section 14, the right of preemption 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 lend 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 subdivision 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 tha land or property is situated. Explanation -- In the case of sale by, a female of land or property to which, she has succeeded on life-tenure through he husband, son, brother or father, the word 'agnates' in this section shall mean the agnates of the person through whom she has so succeeded." The heirs of the vendor in order of succession were allowed to exercise the right of pre-emption. They were also followed by co-sharers, inferior or superior owners as the case may be, owners of the patti, owners of the estate, and the occupancy tenants. The Explanation appearing at the end of this section made it clear that in case of sale of Land by a female, the right of pre-emption shall vest in the heirs of the last-male-holder through whom she succeeded to the property sought to be pre-empted.
(2.) This provision was challenged as being violative of Article 19 (1) (f) of the Constitution in Uttam Singh v. Kartar Singh, AIR 1954 Punj 55 (FB), and it was observed that the objects underlying Sections 15 and 16 of the Act were: (1) to preserve the integrity of the village and the village community; (2) to avoid fragmentation of holdings; (3) to implement the agnatic theory of the law of succession. (4) to reduce the chances of litigation and friction and to promote public order and domestic comfort; and (5) to promote private and public decency and convenience. It was held that these restrictions upon the right guaranteed under Article 19 (1) (f) of the Constitution were in the interest of the general public and the State. This view was affirmed in Ram Sarup v. Munshi, AIR 1963 SC 553.
(3.) In the meantime, however, there arose considerable spurt in thinking in favour of tenants and against landlords whose lands were being cultivated by occupancy tenants. Definite trends were discernible in public opinion regarding the removal of middlemen who reaped unearned interest from land and for the amelioration of the lot of ordinary tenants. The Punjab Security of Land Tenures Act, 1953, the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act 1954, and the Pepsu Tenancy and Agricultural Lands Act, 1955, were brought on the statute book. Laws regulating the village common lands were also passed in the erstwhile State of Punjab and Pepsu. A reference to some of the relevant provisions of these statutes will be made at a latter part of this judgment. At this stage, suffice it to notice that while examining the constitutional validity of the Punjab Security of Land Tenures Act, 1953, their Lordships of the Supreme Court in Atma Ram v. State of Punjab, AIR 1959 SC 519, considered some of the salient features of the earlier agrarian legislation on the subject and observed as under: "The Punjab Legislature realising that the interest of a tenant was much too precarious for him to invest his available labour and capital to the fullest extent so as to raise the maximum quality and quantity of money crops or other crops, naturally, in the interest of the community as a whole, and in implementation of the Directive Principles of State Policy, thought of granting longer tenures and as we have seen above, the period has been progressively increased until we arrive at the stage of the legislation now impugned, which proposes to create a large body of small land-owners who have a comparatively larger stake in the land, and consequently, have greater impetus to invest their labour and capital with a view to raising the maximum usufruct out of the land in their possession." These considerations could not have gone unnoticed by the State Legislatures. In short, the occupancy tenants and the ala malik rights had been abolished. Under Section 6 of the Act, certain class of tenants had also been given right to preempt sales of land comprising their tenancies and under Section 17 (a) of the Act, certain sales of tenancy lands in favour of the tenants were made immune from the exercise of right of pre-emption. By adding Section 8-A to the Pepsu Tenancy and Agricultural Lands Act, 1955, sale of land, comprising the tenancy of a tenant made to him by the landowner, was made non-preemptible under the Act. This section is in pan materia with Section 17 (a) of the Act, and both these provisions were introduced by the Punjab Act No. 3 of 1959. The result was that where a tenant himself purchased the property comprised in his tenancy, even the son of landlord was not allowed to pre-empt such a sale.;