Bhag Singh and Others vs Kartara and Others

Gurnam Singh, J.—In the above noted three cases the question that arises for decision is whether the Punjab Preemption Act (Act 1 of 1913), as amended up to the end of "December 1943, hereafter referred to as the Act, is ultra vires the Constitution of India. It may be mentioned here that Act 1 of 1913 was enforced in this State mutatis mutandis vide Notification No. Leg./21, dated 1-2-2001/13-5-1944.

CIVIL MISC. No. 117 OP 1953. Bhag Singh, Vendee-Defendant-Petitioner vs. Kartar Singh, Pre-emptor Plaintiff- Respondent No. 1 Dalip Singh, vendor Respondent No. 2.

On 27-6-1950 Bhag Singh purchased from Dalip Singh 60 kanals and 16 marlas of agricultural land by means of a registered-deed. Kartar Singh instituted a suit for possession by way of pre-emption. Before the trial Court, it was pleaded that the Act was ultra vires the Constitution of India. Bhag Singh vendee-Petitioner applied under Article 228 of the Constitution of India for transfer of the case to the High Court as it involved a substantial question of law as to the interpretation of the Constitution. Teja Singh C. J. withdrew the case from the Court of Sub-Judge 2nd class, Kapurthala.

REGULAR SECOND APPEAL No. 157 OP 1951. Mukand Singh and Ors. Vs. Arjan Singh and Ors.

In this case Arjan Singh and Puran Singh Respondents filed a suit for possession by way of pre-emption on the strength of their being co- sharers in the agricultural lands sold to Mukand Singh. The suit was decreed by the trial Court. In appeal before the District Judge the constitutionality of the Act was questioned by the Appellant. The appeal was, however, dismissed in liming on 28-6-1951. In second appeal to the High Court Kesho Ram Passey J. (now C. J.) referred the case to a larger Bench.

CIVIL REVISION No. 79 OP 1952. Tara Singh, vendee-Petitioner vs. Kartar Singh, Plaintiff-Respondent.

Phuman Singh vendor sold agricultural land in dispute to Tara Singh and his brOrs. . Kartar Singh Plaintiff instituted the suit for possession by way of pre-emption. The Defendant pleaded that the Act being ultra vires, the Constitution of India the suit could not proceed. Relying on - Abdul Hakim Vs. Jan Mohammad and Others, the trial . Court decided the issue against the Defendants holding in favour of the validity of the Act. Tara Singh vendee filed a revision petition against this order. Teja Singh C. J. referred the case to a larger Bench.

It was under these circumstances that the three cases mentioned above came up before this Bench for determination of the question of law whether the Act was ultra vires the Constitution of India. Mr. Dalip Chand, who appeared in all the three cases for the vendees in his grounds of revision and appeal questioned the validity of the Act in reference to Articles 19(1)(f) and 14 of the Constitution.

Being conscious of the existence of Full Bench authority of Punjab High Court, he gave up the attempt to justify his contention as far as Article 19(1)(f) of the Constitution was concerned. To impugn the validity of the Act, he fell back on Article 31 of the Constitution. He conceded that in case Article 19(1)(f) applied the Act only imposed reasonable restrictions upon the right of citizens to acquire, hold and dispose of property and, therefore, its validity on that account alone could not be questioned.

He, however, urged that Article 19(1)(f) had no application for determination of the question, as it merely dealt with abstract rights and capacity of citizens to acquire, hold and dispose of property. His contention was that Article 31 dealt with ''deprivation of property'' and thus was the only appropriate provision of the Constitution to be considered. for determination of the question. His contention that Article 19(1)(f) dealt only with abstract rights was based on the expression of opinion of Sastri C.J. in the case of - The State of West Bengal Vs. Subodh Gopal Bose and Others, Dealing with this aspect of the case in a later decision of the Supreme Court in - The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., his Lordship Mukherjea J. observed:

A point was suggested by the learned Attorney-General that as Article 19(1)(f) deals only with the natural rights inherent in a citizen to acquire, hold and dispose of property in the abstract without reference to rights to any particular property, it can be of no real assistance to the Respondent in the present case and Article 31 of the Constitution, which deals with deprivation of property, has no application here. In the case of - The State of West Bengal Vs. Subodh Gopal Bose and Others, an opinion was expressed by Patanjali Sastri C.J. that Article 19(1)(f) of the Constitution is concerned only with the abstract right and capacity to acquire, hold and dispose of property and that it has no relation to concrete property rights.

This, it may be noted, was an expression of opinion by the learned Chief Justice alone and it was not the decision of the Court; for out of the other four learned Judges who together with the Chief Justice constituted the Bench, two did not definitely agree with this view, while the remaining two did not express any opinion one way or the other. This point was not raised before us by the Advocate-General for Madras who appeared in support of the appeal, nor by any of the other counsel appearing in this case. The learned Attorney-General himself stated; candidly that he was not prepared to support the view taken by the late Chief Justice as mentioned above and he only raised the point to get an authoritative pronouncement upon it by the Court. In our opinion, it would not be proper to express any final opinion upon the point in the present case when we had not the advantage of any arguments addressed to us upon it. We would prefer to proceed, as this Court has proceeded all along, in dealing with, similar cases in the past, on the footing that r, Article 19(1)(f) applies equally to concrete as well as abstract rights of property.

From this, it is clear that the view which found favour with Sastri C.J. was not accepted by their Lordships of the Supreme Court. The contention of the learned Counsel, therefore, drawing distinction between abstract and concrete rights in relation to Article 19(1)(f) must fail. Before considering the application of Article 31, Punjab Pull Bench authority can be cited right here with advantage. In - Uttam Singh Vs. Kartar Singh and Others, it was held:

The restrictions imposed by Sections 15 and 16 upon the right guaranteed by Article 19(1)(f) are in the interests of the general public of the State. It cannot also be sustained that the restrictions have no reasonable relation to the object which the legislation seeks to achieve or go in excess of that object. The sections are, therefore, not ultra vires.

The repeal of the Punjab Alienation of Land Act by the Adaptation of Laws (Third Amendment) Order, 1951, does not render the provisions of Sections other than Sections 3 (4), 14, 13, 24, 29 and the concluding clause of Section 9 of the Act to be void. The restrictions imposed by those sections are severable and the deletion of those sections does not "affect the constitutionality of the Act.

The object:

(i) to preserve the integrity of the village and the village community;

(ii) to avoid fragmentation of holdings; (iii) to implement the agnatic theory of the law of succession;

(iv) to reduce the chances of litigation and friction and to promote public order and domestic comfort, and

(v) to promote private and public decency and convenience.

The pre-emptive right is primary and secondary in nature. It is a primary right which exists before the sale and a secondary one which arises when a sale has been effected.

I respectfully agree with these observations. It is wholly unnecessary to repeat the reasons given by the learned Judges in the judgment for arriving at the conclusions mentioned therein. Following this authority I hold that Sections 15, and 16 of the Act are not ultra vires the Constitution. It has'' become unnecessary to discuss Article 19(1)(f) any further in view of the position taken up by the learned Counsel for the vendees. It is, however, significant to note that in the case mentioned above the validity of the Act was not questioned on account of the provisions of Article 31.

The competency of the legislature to enact the impugned Act is not disputed before us by the learned Counsel for the vendees. The only point for determination, therefore, is whether the provisions of the Act are inconsistent with Part III of the Constitution. It is well settled that in deciding the validity of an enactment the court must presume in favour of its constitutionality. In - Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, their Lordships of the Supreme Court observed:

The presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.

As already observed the learned Counsel for the vendees submitted that the case was governed by Article 31 of the Constitution. He argued that the Act enabled the pre-emptor to deprive the purchaser of his property and thus violated the provisions of the Article. This Article reads as under:

(1) No person shall be deprived of his property save by authority of law.

(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.

(3) No such law as is referred to in Clause (2) made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent.

(4) If any Bill pending at the commencement of this Constitution in the Legislature of a State has, after it has been passed by such Legisla ture, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any Court on the ground that it contravenes the provisions of Clause (2).

(5) Nothing in Clause (2) shall affect-

(a) the provisions of any existing law other than a law to which the provisions of Clause

(6) apply, or

The learned Counsel argued that Clause (2) of Article 31 required that acquiring of property etc. must be for public purposes and that the person thus deprived of his property must be paid compensation. The Act, on the other hand, enabled an individual for his own benefit, to deprive Anr. of his property. This was not permissible. It was not denied that the second condition requiring payment of compensation was fulfilled by the Act. In my judgment, this contention cannot prevail in view of the existence of saving clause contained in Article 31(5) (a). This clause lays down that nothing in Clause (2) shall affect the provisions of any existing law other than a law to which the provisions of Clause (6) apply. It was admitted that the Act was an existing law which did not, come within the grip of Clause (6). In my opinion, there is, thus, no escape from the conclusion that the Act was saved by Clause (5)(a) of Article 31.

Against the application of this clause, learned Counsel urged that it only saved that what was expressly provided in Article 31(2). He submitted that the Court could not look into the question of empensation, as it was expressly provided therein. The court was, however, entitled to investigate the question whether the provisions of the Act related to the existence of public purpose and, as such the relevant provisions of the Act to the contrary effect were ultra vires the Constitution of India. The existence of public purpose and obligation to pay compensation, according to his contention, were necessary concomitants of compulsory acquisition of private property. In Case such acquisition was not found for public purpose, the Act necessarily violated the provisions of the Constitution, as acquisition provided for by the Act was for the benefit of an individual.

In support of his contention learned Counsel relied on the observations made by his Lordship Mahajan J. (now C. J.) in - ''State of Bihar v.

The State of Bihar Vs. Sir Kameshwar Singh, It is noteworthy that in that case his Lordship was considering the effect of Clause (4) of Article 31. He had, therefore no occasion to express his views on Clause (5) which is under consideration in the present case. Apart from this the majority view of the learned Judges in that case appears to be against the view adopted by his Lordship. In the course of his judgment Sastri C. J. was pleased to observe-

These provisions, so far as they are material here, are, (1) that a law with respect to acquisition of property should authorise acquisition only for a public purpose and (2) that men law should provide for compensation, etc. Mr. Das, while admitting that (2) was a ''provision of Article 31(2), submitted that (1) was not. According to him, Clause (2) assumed but did not ''provide'' that acquisition should be authorised only for a public purpose. I cannot accept that view. In my opinion, the clause seeks also to impose a limitation in regard to public purpose.

Article 31 (2) must, therefore, be taken to provide for both the limitation in express terms." (9) Similarly Das J. observed: "These three limitations constitute the protection granted to .the owner of the property and is the measure of his fundamental right under this clause. Unless these limitations were provisions of the Article, the Article would have afforded no immunity at all. I am, therefore, clearly of opinion that the existence of a public purpose as a prerequisite to the exercise of the power of compulsory acquisition is an essential and integral part of the ''provision'' of Clause (2).

The existence of a public purpose as a condition precedent to the exercise of the power of compulsory acquisition being then, as I hold, a ''provision'' of Article 31(2), and infringement of such a provision cannot, under Articles 31 (4), 31A and 31B, be'' put forward as a ground for questioning the validity of the Act.

Mukherjea J. was pleased to observe-

For my part I would be prepared to assume that Clause (4) of Article 31 relates to everything that is provided for in Clause (2) either in express terms or even impliedly and consequently the question of the existence of a public purpose does not come within the purview of our enquiry in the present case.

Contrary view was expressed by their Lordships Mahajan J. (now C. J.) and Chandrasekhara Aiyar J. His Lordship Mahajan J. observed:

In order to determine the scope of this clause, it is necessary to determine what are the specific provisions of Clause (2) which Clause (4) makes unjusticiable. A strict construction has to be placed on the language of this clause, it being in the nature of a debarring provision. In my opinion, the provisions of Sub-clause (2) made unjusticiable by Clause (4), relate to the determination and payment of compensation.

The whole purpose of the clause is to make the obligation to pay compensation a condition precedent to the compulsory acquisition of property. The words of the clause preceding the word ''unless'' are merely descriptive of the law; the validity of which would be questionable if there was no provision for determination and for payment of compensation for the property taken in its contents.

The mandate of the clause is that such a law must contain a provision for payment of compensation to the expropriated proprietor. According to the Oxford Dictionary, (Vol. 8, p. 1526) the expression ''provision'' when used in statutes, has reference to what is expressly provided therein. What Article 31(4) really says is that the contravention of the express provisions of Article 31(2) relating to payment of compensation will not be a justifiable issue. It has no reference to anything that may be implied within the language of that clause. The existence of a ''public purpose'' is undoubtedly an implied condition of the exercise of compulsory powers of acquisition by the State, but the language of Article 31(2) does not expressly make it a condition precedent to acquisition." "The result of this discussion is that the scope of Article 31(4) is limited to the express provisions of Article 31(2) and Courts cannot examine either the extent or the adequacy of the provisions of compensation contained in any law dealing with the acquisition of property compulsorily for public purpose but the barring provisions of Article 31(4) do not in any way touch the powers of the Court to see whether the acquisition has been made for public purpose.

Chandrasekhara Aiyar J. during the course of his judgment observed-

It is assumed, rightly, that the existence of a public purpose is part and parcel of the law and is inherent in it. The existence of a public purpose is not a provision or condition imposed by Article 31(2) as a limitation on the exercise of the power of acquisition. The condition prescribed is only as regards compensation.

It, therefore, appears to be clear that according to the majority view of the learned Judges both conditions were provisions of Clause 2. As already observed, his Lordship Mahajan J. when expressing his view had under his consideration Clause (4) of Article 31 in which expression ''provision'' occurs. Such an expression does not find place in Clause (5)(a) which is under consideration in the present case. From the reading of Clause (5) it is clear that it is much wider in scops and does not contain limitations mentioned in Clause (4). The cardinal principle of interpretation of a statute is that it be expounded ''according to the intent of them that made if. If the words of the statute are clear, precise and unambiguous they should be exnounded in their natural and ordinary sense specially when such exposition is not inconsistent with that sense and does not lead to manifest injustice.

Keeping this principle in view I am of the opinion that the plain meaning of Clause (5) (a) is that it saves the provisions of the Act, which is an existing law, from the operation of Clause (2) of Article 31. Nothing in Clause (2) either provided expressly or impliedly can affect the provisions of any existing law. Thus, CI. (5), as already observed, is very wide in its scope. The language of this Clause is so plain that it admits only of one meaning. It is, therefore, hardly necessary to interpret this Clause. Their Lordships, as already remarked, were considering the operation of Clause (4). The language of that Clause is totally different from the one used in Clause (5). The expression of opinion which found favour with their Lordships therefore, does not help the coiitention raised by the learned Counsel while interpreting Clause (5).

It appears to be too obvious that Clause (5) was designed to" bar the jurisdiction of Courts to entertain objections to the validity of the existing enactments other than those to which provisions of Clause (G) apply. It was admitted that the Act did not fall under Clause (6), as it was passed beyond 18 months of the commencement of the Constitution and as such was an existing law within the meaning of Article 31(5) of the Constitution. The constitutionality of the Act, under these circumstances, in my opinion, cannot be canvassed. It, therefore, follows that the Act does not offend the provisions of the Constitution.

Lastly, it was argued by the learned Counsel for the vendees that the Act offended the provisions of Article 14 of the Constitution, as it enacted a discriminatory legislation. Article 14 reads as under-

The State shall not deny to any person, equality before the law or the equal protection of the laws within the territory of India.

It is obvious that this Article forbids class legislation; but it does not shut out classification fori the purpose of legislation. Article 14 corresponds to the equal protection clause of the Fourteenth Amendment of the Constitution of the United States; of America, which says that

no State shall deny to any person within its jurisdiction the equal protection of the laws.

Professor Willis interpreting this clause sums up the law as follows:

The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. ''It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.'' ''The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discrimination and hostile legislation.

If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One - who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis.

The same author further observed:

Many different classifications of persons have been upheld as constitutional. A law applying to one person or one class of persons is constitutional if there is sufficient basis or reason for it.

In - Kedar Nath Bajoria Vs. The State of West Bengal, Patanjali Sastri, c. J. observed:

Now, it is well settled that the equal protection of the laws guaranteed by Article 14 of the Constitution does not mean that all laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purposes of legislation. To put it simply, all that is required in class or special legislation is that the legislative classification must not be arbitrary but should be based on an intelligible principle having a reasonable relation to the object which the legislature seeks to attain.

If the classification on which. the legislation is founded fulfils this requirement, then the differentiation which the legislation makes between the class of persons or things to which it applies and other persons or things left outside the purview of the legislation cannot be regarded as a denial of the equal protection of the law, for, if the legislation were all-embracing in its scope, no question could arise of classification being based on intelligible differentia having a reasonable relation to the legislative purpose.

This view also found favour wit.h their Lordships as reported in - Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, and - Kathi Raning Rawat Vs. The State of Saurashtra,

The question for consideration, therefore, is whether these tests are fulfilled by the provisions of the Act. In - Punjab State Vs. Inder Singh and Others, during the course of his judgment Khosla J. observed:

The objects of the law of pre-emption may be briefly enumerated as follows:

(1) To preserve the integrity of the village and the village community.

(2) To implement the agnatic theory of law.

(3) To avoid fragmentation of holdings.

(4) To reduce the chances of litigation and friction and to promote public order and domestic comfort.

(5) To meet the needs of a particular society at a particular stage of the evolution.

I respectfully agree with the observations made by the learned Judge. Prom the provisions of the Act it is obvious that the statute operates equally on all persons including the group of preemptors and the classification is not arbitrary, but it bears a reasonable relation to the objective which the legislature had in view. The tests laid down by their Lordships, therefore, in my opinion, are complied, with by the Act. The contention of the learned Counsel that it discriminates between the done and the alienee, cannot hold good. I am, therefore, of the view that the Act does not offend the provisions of Article 14 of the Constitution.

The learned Counsel for the opposite side argued in favour of validity of the Act on the following grounds:

That acquisition of property provided by the Act was in fact for public purpose. In support of this contention it was pointed out that the law of pre-emption is for the welfare of the people as it reduces chances of litigation, consolidates property, tends to increase wealth, implements the agnatic theory of Law of Succession and promotes private and public decency and convenience;

That the right of pre-emption was not a right of re-purchase either from the vendor or from the vendee involving any new contract of sale. It was in fact a right of substitution entitling the pre-emptor by reason, of legal incident to which such sale itself was subject to step in the shoes of the vendee in respect of the rights and obligations arising from the sale under which he derived his title. The question of depriving the vendee of his property within the meaning of Article 31, therefore, did not arise.

That the provisions of Article 31 were not attracted, as the State did not acquire property under the Act. Article 31 contemplates acquisition etc., of private property of an individual by the State.

From this it was argued that the Act was valid and not ultra vires the Constitution of India. In support of their contention learned Counsel cited several authorities. In view of our finding that the Act is saved by Clause (5)(a) of Article 31 it is unnecessary to express our opinion on these contentions.

For the reasons stated above, I hold that the relevant provisions of the Act are not ultra vires the Constitution of India.

Having decided the question which arose in these cases, we direct that case ''Civil Misc. No. 117 of 1953 (Bhag Singh v. Kartara) and ''Civil Revision No. 79 of 1952'' (Tara Singh v. Kartar Singh) will be sent back to the respective trial Courts for decision on merits in accordance with law. Regular Second Appeal No. 157 of 1951 (Mukand Singh v. Arjan Singh) will be fixed for hearing before my Lord the Chief Justice, who referred the case for decision of the question referred to above. The parties in Civil Misc. No. 117 of 1953 and Civil Revision No. 79 of 1952 have been directed through their counsel to appear before the trial Court on 20th May, 1954.

It is ordered accordingly;

Chopra, J.

I agree.