Bhandari, C.J. - (1.) On 17-9-1951 one Mehraj-ud-Din sold two houses which are situate within the city walls of (sic) to one Sarda Ram for a sum of Rs. 5,990/-. On the 8th August 1952 one Abdul Majid who owned a house adjoining the house in dispute, brought a suit for possession by pre-emption on the ground that he was entitled under the custom of pre-emption prevailing in the locality where these houses are situated to pre-empt the sale of the said houses. The trail Court granted a decree in favour of the pre-emptor, and the vendee has come to this Court in appeal.
(2.) When this appeal came up for hearing before a Division Bench of this Court, the attention of the learned Judges was invited to a recent decision of this Court reported as Kesar Devi v. Nanak Singh, AIR 1958 Punj 44 in which a Division Bench of this Court had expressed the view that right of pre-emption on the basis of vicinage or contiguity is repugnant to the provisions of Art. 19(1)(f) of the Constitution. As the view taken by the Division Bench in the said case was in conflict with the view taken by a Full Bench of the is Court in Uttam Singh v. Kartar Singh, AIR 1954 Punj 55 and as the point was likely to arise in a number of other cases, the learned Judges referred the case to a Bench of three Judges and later to a Bench of five Judges. The question which has been referred to us is as follows : "Is the provision contained in clause sixthly of S. 16 of the Punjab Pre-emption Act, 1913, (Act No. 1 of 1913) ultra vires of the provisions of Art. 19 of the Constitution of India?"
(3.) Section 15 and 16 of the Punjab Pre-emption Act lay down the rules of priority amongst the pre-emptors and the vendees. Section 15 concerns agricultural land and village immovable property, while S. 16 relates to urban immovable property. Section 16 declares that the right of pre-emption in respect of urban immovable property shall vest "........ Sixthly in the persons who own immovable property contiguous to the property sold." Article 19 of the Constitution declares that all citizens shall have the right to acquire, hold and dispose of property and that the State shall have power to make laws imposing reasonable restrictions on the exercise of those rights either in the interests of any schedule Tribe. This article imposes a constitutional obligation on the Court to enquire whether there has been an arbitrary interference with the protected rights of property.;