Galodhu vs Nanak Chand and another

Wazir, C.J.—In a pre-emption suit filed in the Court of Munsiff Jammu one of the pleas raised in defence was that the right of Prior

Purchase Act was 'ultra vires' the Constitution and therefore void. The plea raised by the defendant did not find favour with the trial Court and it

held that the Right of Prior Purchase Act was not 'ultra vires' of the Constitution. Against this order the defendant came up in revision to this Court

and in view of the importance of the question involved Shahmiri J., proposed that this revision application be disposed of by the Full Bench of this

Court. This application, therefore, came up for hearing before the Full Bench.

The case involves interpretation of Art. 19(1) (f) read with Cl. (7) added to the Article under para. 4(d)(iii) of the Constitution (Application to

Jammu & Kashmir) Order 1954, and certain provisions of the Jammu & Kashmir Right of Prior Purchase Act. 1993. It is contended on behalf of

the defendant vendee that the Right of Prior Purchase Act is 'ultra vires' as its provisions contravene Art, 19(1)(f) of the Constitution. It is argued

that Ss. 14 and 15 of the Right of Prior Purchase Act impose restrictions on freedom to acquire, hold and dispose of property and these

restrictions not being in the nature of reasonable restrictions interfere with the right of an individual to buy and sell property and cannot, therefore,

be allowed to stand. The learned counsel for the petitioner relied on a ruling of the Hyderabad High Court reported as -- ""Moti Rai v. Kand Kari',

AIR 1954 Hyd 161 (FB), (A) in which it was held that the customary law of pre-emption as enforced by the Court in Hyderabad State prior to

the Constitution violates the fundamental right under Art. 19(1)(f) of the Constitution and, therefore, has become void and unenforceable under

Art. 13(1) after the coming into force of the Constitution of India.

The above ruling would not be of much assistance to the applicant. In Art. 19 of the Constitution as applicable to our State by the Constitution.

(Application to Jammu & Kashmir) Order, 1954, there is Cl. (7) especially added which reads as under:

The words ""reasonable restrictions"" occurring in Cls. (2), (3), (4) and (5) shall be construed as meaning such restrictions as the appropriate

Legislature deems reasonable.

Under Art. 19(1) Cl. (f) of the Constitution all citizens have the right to acquire, hold and dispose of property subject to restrictions imposed under

Cl. (5) of Art. 19 which may be imposed in the interest of the general public or for the protection of the interest of any scheduled tribe. The

customary law of pre-emption as enforced by the Court in Hyderabad State prior to the Constitution imposed certain restrictions which were held

to be a clog on the right to dispose of property and was held to be void and 'ultra vires' the Constitution. The Courts in India have to see under

Art. 19(l)(f) read with Cl. (5) of the Constitution whether or not the restrictions imposed by any law are reasonable and are in the interest of the

general public.

But the position, so far as our State is concerned, is quite different. The powers of the Court are limited by the Constitution itself according to the

provisions of Cl. (7) of Art. 19 which lays down that the wards ""reasonable restrictions"" occurring in Cl. (5) of Art. 19 will be deemed to be

reasonable if laid down by the appropriate Legislature. In other words the Court has not to go into the question whether the restrictions which are

imposed by certain laws in regard to the disposal or purchase of the property are reasonable or not as they would be deemed to be reasonable

and in the, interest of the general public because they have been imposed by the appropriate Legislature.

Certain cases under the Pre-emption Act came up for consideration before the Punjab High Court and the Court had to see whether or not the

restrictions imposed by Ss. 14 and 15 of the Punjab Preemption Act were reasonable and in the interest of the general Public. The Punjab High

Court, after examining the restrictions imposed by the Preemption Act, came to the conclusion that they were reasonable and were in the interest

of the general public and therefore held that the Act was not ultra vires' of the Constitution. Reference may be made to -- 'Punjab State v. Inder

Singh', AIR 1953 P&H 20 (B) and -- Uttam Singh Vs. Kartar Singh and Others, .

The learned counsel for the applicant argued that under Cl. (7) which is a new clause added to Art. 19 by the Constitution (Application to

Jammu & Kashmir) Order, 1954, the Court may not go into the reasonableness of the restrictions but it has to see whether or not the restrictions

are in the interest of the general public. There is not much force in this argument. Whether the restrictions are reasonable or unreasonable have to

be determined with reference to the object which the Legislature has in view in imposing the restrictions. If it is open to the Court to examine

whether certain restrictions imposed by law are reasonable or not the Court has to see what was the object of the Legislature in imposing those

restrictions and if these restrictions appear to be for the benefit of the public in general the restrictions would be held to be reasonable. But in the

State Cl. (7) specifically lays down that the words ""reasonable restrictions"" occurring in Cl. (5) of Art. 19 shall be construed as meaning such

restrictions as the appropriate Legislature deems reasonable i.e., if the Legislature has considered the restrictions to be reasonable keeping in view

the fact that they are for the benefit of the public in general it is not open to the Courts to examine those restrictions in order to find out whether

they are reasonable or not. The Constitution under Cl. (7) mentioned above has itself ousted the jurisdiction of the Courts to examine the

reasonableness of the restrictions which have been imposed by appropriate Legislature. The Hyderabad authority cited by the learned counsel for

the applicant would not be applicable to cases arising under the Right of Prior Purchase Act in the State.

I am, therefore, of opinion that the provisions of Ss. 14 and 15 of the Right of Prior Purchase Act do not contravene Art. 19(1)(f) read with the

new Cl. (7) added to the Article under para. 4(d)(iii) of the Constitution (Application to Jammu & Kashmir) Order, 1954.

This revision application, therefore, fails and is dismissed. The parties shall bear their own costs in this Court.

Kilam, J.

I agree.

Shahmiri, J.

I agree.