Habib Ullah and Another vs Gh. Ahmed Baba and Others

G.M. Mir, J.—In view of the challenge thrown to the constitutionality of Sub-section (5) of Section 15 of the Jammu and Kashmir Right of

Prior Purchase Act in the two civil second appeals, the matter has been referred to Full Court for consideration and adjudication. The learned

counsel for the parties as well as the learned Advocate-General were heard in this regard.

The trial Court dismissed the suits holding that there was no right of prior purchase in the pre-emptor while the 1st Appellate Court reversed this

finding of the trial Court and decreed the suits. It was against the judgment of the District Judge Anantnag that the present appeals have been filed

in which, inter alia, an objection has been taken to the effect that the judgment and decree of the 1st Appellate Court not being in ac- cordance

with law be set aside as the 1st Appellate Court has failed to take into consideration the unconstitutionality of ""fifthly"" of Section 15 of the Right of

Prior Purchase Act. It was prayed that the judgment and decree passed by the 1st Appellate Court be set aside and the suit of the plaintiff be

dismissed with costs.

Before proceeding further it would be profitable to note Section 15 of the Right of Prior Purchase Act, 1993 (hereinafter referred to as the Act),

the 5th clause of which is subjected to the objection of being invalid on the basis of being unconstitutional. The whole section is reproduced below :

Person in whom right of prior purchase vests in urban immovable property. -- The right of prior purchase in respect of urban immovable

property shall vest -

Firstly -- in the co-sharers of such property, if any;

Secondly -- where the sale is of the site of the building or other structure, in the owners of such building or structure;

Thirdly -- where the sale is of property having a staircase common to other properties, in the owners of such properties;

Fourthly -- where the sale is of property having a common outer entrance with other properties, in the owners of such properties;

Fifthly -- where the sale is of servient property in the owners of the dominant property, and vice versa;

Sixthly -- in the owners of property contiguous to the property sold.

From a perusal of Clause fifthly, it is manifest that the right of prior purchase in respect of urban immovable property has been enacted to vest in

the owner of the dominant property when the sale is of servient property. This is so vice versa also. In view of Article 19(1)(f) the fundamental

right conferring the right on all citizens to hold, possess and acquire and keep and dispose of the property, the argument at the bar was that the

owner of the property mentioned in Clause fifthly of Section 15 of the Right of Prior Purchase Act is subjected to restrictions in dealing with his

property as he Would like to deal with and that the restriction so laid by virtue of the said Clause fifthly was unreasonable in its nature and in

character and therefore the clause needs to be struck down as unconstitutional. There is no denying the fact that the fundamental right to hold,

acquire and dispose of the property as mentioned in Article 19(1)(f) is subject to limitations and restrictions as stated in Clause (5) of the Article

The clause in effect authorises the State to introduce restrictions in the exercise of this right subject of course to the overriding requirement of

the restriction being reasonable.

Section 15 of the Right of Prior Purchase Act undoubtedly introduces restrictions in the right created under Article 19(1)(f) but the question that

has fallen for determination is as to whether the restrictions as laid in Section 15 of the Act in general and in Clause fifthly in particular were or were

not reasonable restrictions and as such could be held to be in accordance with the constitution. Article 19 of the Constitution of India guarantees to

the citizens of India what are termed as seven pillars of freedom, One of these pillars was contained in Sub-clause (f) of Clause (1) of Article 19

which was to the effect that all citizens shall have the right to acquire, hold and dispose of property. Like all other clauses of Sub-section (1) of

Article 19, Sub-clause (f) also came to confer the fundamental right subject to certain limitations, which are quoted below :

(5) Nothing in Sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the

State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the

interests of general public or in the interest of the security of the State.

There is no dispute with regard to the proposition that the fundamental right to acquire, hold and dispose of property could be subjected to

restrictions imposed by law. The fundamental right to acquire land, hold it and dispose it of has been undoubtedly subjected to restrictions by virtue

of the Act. Sub-clause fifthly thereof vests the right of prior purchase on account of easement in both the dominant as well as servient owner. The

question that arises is whether these restrictions are reasonable and could be enforced under the Constitution.

The question as to whether such restrictions as contained in the Easements Act and in our State imposed by virtue of the Bight of Prior Purchase

Act are constitutional or not has come up for adjudication on several occasions before this Court as well as some other High Courts and also

before the Supreme Court. The whole question almost came to be clinched in Bhau Ram Vs. B. Baijnath Singh, . In that case the Supreme Court

was considering the constitutionality of enactments such as Berar Land Revenue Code and Berar (Rewa ?) State Pre-emption Act and also

Section 16 of the Punjab Preemption Act of 1930 in the background as to whether the restrictions imposed under these enactments and provisions

of law could be held reasonable restrictions within Clause (5) of Article 19 of the Constitution. The said Section 16 corresponds word for word to

Section 15 of the J. & K. Right of Prior Purchase, Act. The Supreme Court in this elaborate judgment considered and discussed the

constitutionality not only of a particular ground of easement fallen for determination before it, but gave its valuable opinion and verdict with respect

to almost all the contingencies enumerated in Section 16 of the Punjab Pre-emption Act. The principle of law laid down by the Supreme Court

vide Bhau Ram Vs. B. Baijnath Singh, broadly speaking was that the clauses firstly, thirdly and fourthly in Section 16 of the Punjab Act laid

reasonable restrictions to the fundamental right of disposing, acquiring and holding the property as enshrined in Article 19(1)(f). The judgments,

however struck down Clause sixthly which conferred the right of pre-emption on the basis of contiguity and vicinage as unconstitutional and held

that the restriction of vicinage was unreasonable. The judgment of course makes no mention about the constitutionality or otherwise of Clauses

secondly"" and ""fifthly"" appearing in Section 16 of the Punjab Act corresponding to same clauses in Section 15 of the State Act, May be about

Clause secondly one may conjecture on the analogy of the reasoning adopted in the judgment of the Supreme Court with regard to Clause ""firstly

that the restriction laid therein may also amount to a reasonable restriction but the Supreme Court has not held so, nor does this matter immediately

fall for consideration before us. We will do well in leaving this matter to be considered when the same is specifically brought before the Court. We

are immediately in these appeals however, concerned only with Clause ""fifthly"" in Section 15 of the J. & K. Right of Prior Purchase Act and to find

out as to whether the restriction laid therein was or was not a reasonable restriction. Whether an easement is a reasonable restriction on the right to

acquire property as envisaged under Clause (5) of Article 19 of the Constitution came up for consideration before a Full Bench of this Court in

AIR 1965 J&K 62 . The Full Bench was of the view that the restriction on the basis of an easement was a reasonable restriction and therefore,

held Clause 'fifthly' of the Right of Prior Purchase Act as constitutionally valid. The main reason that appears to have influenced the Full Bench to

arrive at such a conclusion was its belief that though the Supreme Court in Bhau Ram Vs. B. Baijnath Singh, did not specifically deal with Clause

'fifthly' and therefore, had no occasion to express its opinion directly or give a verdict specifically with regard to its constitutionality, yet the ground

appeared to the Full Bench of this Court to be analogous to the fourth ground of easement the constitutionality of which was upheld by the

Supreme Court and therefore it was of the view that it must be deemed that the Supreme Court simultaneously upheld also the constitutionality of

Clause 'fifthly' of Section 15 of the Right of Prior Purchase Act. To us, however, it appears that Clause 'fourthly' as reproduced above is quite

distinct and different in nature and contents from Clause 'fifthly' and pertains to a situation entirely different inasmuch as it cannot be said that a

common outer entrance to several properties, the ground in fourthly, in any way created a situation like the one that may prevail between servient

and dominant properties. On a mere reading of Clauses 'fourthly' and 'fifthly' it could not be concluded that both these provisions were analogous

and therefore, the view of the Full Bench in AIR 1965 J&K 62 that the constitutionality of Clause 'fourthly' having been upheld by the Supreme

Court, it would naturally follow that Clause 'fifthly' also has been held to be constitutional could not be entertained, though as will be seen later in

this judgment, we may also agree with the conclusions arrived at in this regard in AIR 1965 J&K 62 (FB) but that would be for reasons and on

grounds different to those referred to in AIR 1965 J &K 62 (FB). In another judgment of the Supreme Court reported in AIR 1967 SC 1578

which was a case from J & K, Clause 'fourthly' of Section 15 of the Right of Prior Purchase Act came up for consideration and it has been held

that 'fourthly' contained a reasonable restriction and therefore, was constitutionally valid. In this judgment also no reference has been made to

Clause 'fifthly' of Section 15. We are unable, therefore, to persuade ourselves to agree with the reasoning in AIR 1965 J & K 62 (FB) to hold that

Clauses 'fourthly' and 'fifthly' of Section 15 were analogous and therefore, Clause 'fourthly' having been upheld as constitutional, by the Supreme

Court the same conclusion would follow with regard to 'fifthly' also. For the view the Full Bench propounded, yet another reason has been given

by it which is reproduced below : Referring to Bhau Ram Vs. B. Baijnath Singh, the Court observed :

Further their Lordships have mentioned all the six grounds. If they were of the opinion 'that the right of easement should not be upheld as a ground

of pre-emption, their Lordships would have necessarily made that comment. In the case of contiguity their Lordships have in unscathing terms

condemned their right. Contiguity came No. 6 in the list and their omission to condemn No. 5 before No. 6 is very significant. In our opinion,

therefore, easement is a valid ground for the exercise of the right of prior purchase.....

We, however, could not agree with this reasoning. It may be significant that the Supreme Court did not take up 'fifthly' for direct consideration

before it considered the Clause 'sixthly' but that would not mean that the Clause 'fifthly' therefore was also held to be a reasonable restriction.

Before taking up the matter as to whether Clause 'fifthly' of Section 15 of the Act has laid reasonable restriction and as such was constitutional

we will first briefly refer to the special constitutional position prevailing in the Jammu and Kashmir State. As is well-known the State of Jammu &

Kashmir has a Constitution of its own. Before the Constitution of J & K came into existence in 1957, most of the provisions of the Constitution of

India were made applicable to the State by virtue of the Constitution Application Order of 1954. The fundamental rights appearing in Chapter III

of the Constitution of India are applicable to the State of Jammu & Kashmir and form part of the Constitution of Jammu and Kashmir. With some

modifications and alterations a number of provisions of the Constitution of India form part of the Constitution of J. & K. It is now well settled in

rest of India that it was the function and the duty of the courts to probe into and scrutinize the restrictions laid by various legislatures in India on the

exercise of various fundamental rights and find out as to whether the restrictions were or were not reasonable. It is the function of the courts there

to decide upon this matter. The same however, may not be said to be the position in so far as the State of J & K is concerned. This will be obvious

from Sub-section (7) which has been added to Article 19 of the Constitution of India. This sub-section lays down that it was the concerned

legislature which was competent to say whether a certain restriction was or was not reasonable. Sub-section (7) of Article 19 applies only to the

State of Jammu and Kashmir and is as follows :--

The words 'reasonable restriction' occurring in Clauses 2, 3, 4 and 5 shall be construed as meaning such restrictions as the appropriate legislature

deems reasonable"".

Sub-clause (5) of Section 19 as one of the sub-clauses referred to in Sub-clause (7) (supra) concerns with the reasonable restrictions on the

fundamental right of holding, keeping and possessing the property. Obviously therefore the question as to whether the restriction so imposed was

reasonable or not was within the competence of the Legislature of the State to determine. The courts apparently do not possess, nor have they

been vested with, this particular jurisdiction. In this legal background a contention was raised at the bar that the competent legislature having

enacted Section 157 of the Constitution of J & K has in fact laid down that all laws, notifications, rules and bye-laws etc. which were in existence

before the Constitution came into force were valid and shall continue to remain in force, till the same are declared void by competent authority. It

was urged that by introducing this section in the Constitution, the Constituent Assembly of the J & K State has virtually declared that all the laws in

existence before the coming into force of Constitution were good laws and restrictions imposed in any of these laws on any of the fundamental

rights were good and reasonable and, therefore, could not be made subject matter of a challenge now in any court of law.

The contention with reference to the matter at hand in nut-shell would amount to mean that the Legislature which was the only competent body in

this regard has already by enacting Section 157 of the Constitution of Jammu and Kashmir, held and declared therein that the Right of Prior

Purchase Act and the restrictions levied on the fundamental right of holding, acquiring and disposing of the property as envisaged under Article 19

of the Constitution of India were reasonable restrictions, therefore the constitutionality of the provisions of section of the Right of Prior Purchase

Act was no longer open to challenge. This contention however is fallacious and does not appeal to us. The effect of the provisions of the

Constitution was prospective and not retrospective. The Right of Prior Purchase Act as well as the Easements Act were on the statute book long

before the Constitution and especially the fundamental rights came to be enacted. No doubt at the time Section 157 of the Constitution of J & K

was enacted both the Right of Prior Purchase Act as well as the Easements Act were in existence. But what Section 157 of the State Constitution

has done is that it has saved and has further said that these enactments as well as all other enactments in force on or before the coming into force of

the Constitution (which in the case of the State will mean 14th of May, 1954 when the Constitution (Application) Order came into force), will

continue to remain in force till their removal from the statute book in accordance with law. Section 157 nowhere specifically in so many words

states or even indirectly could be construed to have laid down the proposition that the restrictions imposed on various fundamental rights by

various Acts in general and by virtue of Section 15 of the Right of Prior Purchase Act in particular have been gone into and considered from the

angle by the legislature and in its wisdom found the same to be reasonable restrictions. What we are being asked now by Mr. Raina to presume is

that because the Act has been saved under the Constitution, it should be presumed that the restrictions imposed under its provisions have also been

considered and found and declared to be reasonable. We are however, unable to agree that the competent legislature has ever considered and

applied its mind and thereafter declared that the restrictions were reasonable and therefore on that ground the constitutionality of the provisions of

Section 15 of the Right of Prior Purchase Act could not now be challenged. We are on the contrary of the view that this is not the position. The

legislature could not be said to have considered this matter at the time a relevant Act was enacted and therefore, in this view of the matter it was

competent for the courts to adjudicate upon this matter and find out by itself as to whether a particular restriction was reasonable or not.

The Right of Prior Purchase Act was enacted long before the fundamental rights or Section 157 of the Constitution of J. & K. came into being.

How can it be said that the provisions of Right of Prior Purchase Act were gone into, scrutinized, considered and thereafter found to be reasonable

on the touchstone of a fundamental right, that never existed at the time the Act came into force. It is well established rule of construction and is

obvious from a number of decisions of the Supreme Court that the provisions of constitution must ordinarily be given only prospective operation.

We have not been shown any reason as to why this well established rule of construction should be given a good bye in this case. Even from a plain

reading of Sub-section (7) of Article 19 it would be apparent that the effect of this provision was prospective. It does not contain even a

suggestion to the contrary. It will be worth-while to mention here that Sub-section (7) as added to Article 19 of the Constitution of India for all

practical purposes appears to be a temporary measure. It was first introduced for a period of 5 years, then its life was extended by another 5/10

years and then its life continues to be extended from time to time. It can, therefore, come to an end at any time. It was only a provisional and

transitory provision and such a provision therefore, may not be held to have the retrospective effect. No doubt the Legislature of the State is

competent to enact in a particular legislation a provision to the effect that the restriction imposed on one or more fundamental rights in that

particular-enactment was justified and reasonable (and this may or may not be justiciable in a court of law so far as the constitutional position

prevailing at present in J. & K. State was concerned), but it can be said without any fear of contradiction that the High Court of the State is

competent and has jurisdiction to decide and arrive at a conclusion with regard to the constitutionality and reasonableness of a restriction imposed

on one or more fundamental rights as enumerated in Part III of the Constitution in general and on Article 19 of the Constitution of India in

particular, through enactments that were in force on or before the day the Constitution (Application) Order of 1954 came to be applied to the

State. This particular matter has been considered earlier also in a Division Bench case in Tarachand v. Mehta Durga Dass reported in AIR 1963 J

&K 27. It is laid therein as follows :--

Clause 7 added to Article 19 of the Constitution of India by the President's order dated 14-5-1954 in its application to the State of J & K can,

according to its plain tenor and ordinary meaning have only prospective and not retrospective operation. In no sense can Clause 7 be construed as

intended to save from attack the laws which were passed by the Legislature many years before the Fundamental rights came to be enacted. That

clause cannot therefore, be invoked to put out of the way the decision of the Supreme Court in Bhau Ram Vs. B. Baijnath Singh, .

Following the principle of law laid down in Bhau Ram Vs. B. Baijnath Singh, the Division Bench in AIR 1963 J &; K 27 held the ground of

vicinage as unconstitutional. In the case reported as AIR 1963 J &; K 27 Clause 'fifthly' had also been stated as one of the grounds for preemption

besides the ground of vicinage. But as the case was rejected on the vicinage ground, it was nevertheless remanded for evidence on the ground of

easement as the evidence with regard to Clause (5) of Section 15 of the Right of Prior Purchase Act was found defective in many respects. Would

it be to read too much in between the lines if one is permitted to assume that the Division Bench though it has not said so but in its heart of hearts

was of the view that Clause 'fifthly' to Section 15 of the Right of Prior Purchase Act was in fact constitutional and contained reasonable restriction

on the fundamental right concerned, as otherwise the Division Bench would not have allowed itself to be persuaded to remand the case for

recording further evidence. Apart from this, however, there are numerous reasons to which we will come presently which would show that the right

of easement was a reasonable restriction on the fundamental right as enumerated in Article 19(1)(f).

We are of the view therefore that this court was well within its jurisdiction and was competent to go into the question as to whether the

restrictions imposed on any or all the fundamental rights were reasonable restrictions in terms of Sub-sections (2) to (6) of Article 19 of the

Constitution of India in so far as the legislature of the State has not specifically applied its mind to this particular aspect and has failed to amend the

pre-Constitution Acts in this regard or failed also to introduce a specific clause showing that such a consideration, was made and in the opinion of

the legislature the particular restriction was deemed to be reasonable in enactments that came into force after the commencement of the application

of Constitution Order of 1954.

As to whether an easement as envisaged in Clause (5) of Section 15 of the Right of Prior Purchase Act is in fact a reasonable restriction on the

fundamental rights conferred vide Article 19(1)(f), it will be worthwhile to refer again to Bhau Ram Vs. B. Baijnath Singh, The Supreme Court

considered Section 16 of the Punjab Pre-emption Act also in that judgment which as already stated corresponds to Section 15 of the Right of

Prior Purchase Act of the Jammu and Kashmir State. All the grounds on which a pre-emptor could claim pre-emption under the Pre-emption Act

of the Punjab have found place also in the Jammu and Kashmir State Act. In Sardha Ram and Kanhya Lal Vs. Abdul Majid Mohd. Amir Khan

and Others, which was decided by a Full Bench of five judges it was held that whole of Section 16 of Punjab Act was constitutional and that the

restrictions imposed under all the clauses of Section 16 were reasonable. The observations of the Supreme Court in this regard are thought

provoking and the same are quoted below: (At p. 1483)

As to Section 16 the reason which impelled the learned Judges to hold that the provisions of Section 16 were constitutional were to reduce the

chances of litigation and friction and to promote public order and domestic comfort and to promote private and public decency and convenience.

We are not able to understand how providing pre-emption on the ground of vicinage would carry out these objects, assuming their promotion is in

the interests of the general public.

The learned Judges of the Supreme Court continued :--

Perhaps the reasons why these grounds were given in the 1954 case may be that the learned Judges were considering not merely pre-emption by

vicinage but also other grounds provided in Section 16. Whatever may be said about these reasons, so far as other grounds of pre-emption

contained in Section 16 are concerned, these reasons have in our opinion no validity as far as pre-emption by vicinage is concerned.

It is obvious that the reasoning and grounds in upholding the constitutionality of Section 16 of the Pre-emption Act of the Punjab as given in

Sardha Ram and Kanhya Lal Vs. Abdul Majid Mohd. Amir Khan and Others, (which gave rise to the appeal to the Supreme Court reported in

Bhau Ram Vs. B. Baijnath Singh, were not totally rejected by the Supreme Court, but in effect the reasoning appears in a sense to have received

sympathy and support from the Supreme Court when it came to hold almost all other clauses of Section 16 to be constitutionally valid, except of

course Clause 'fifthly' which was not considered at all in that judgment and Clause 'sixthly' which was turned down as unconstitutional. It was only

with regard to Clause 'sixthly' i.e. the ground of vicinage that the reasons given in AIR 1954 P & H 54 (FB) and also in Sardha Ram and Kanhya

Lal Vs. Abdul Majid Mohd. Amir Khan and Others, did not appeal to the Supreme Court as sound as was obvious from the passage quoted

above from Bhau Ram Vs. B. Baijnath Singh, .

The right of pre-emption on account of easement is not a right based on vicinage, though it may be that the right of easement may arise in most

cases because of contiguity also. The right to pre-empt is based on vicinage plus something more i.e. the right of easement conferred by statute.

Clauses 'fifthly' and 'sixthly' are in no manner analogous to each other. Each possesses its own peculiarities and specialities,

It is a settled principle of law that the constitutionality of every Act is presumed unless it is made out clearly and plainly and irrefutably that the

Act was repugnant to Constitution. The constitutionality of Prior Purchase Act of the State is, therefore, to be presumed as nothing has been

shown to hold that it was repugnant. Merely because Clause 'sixthly' of Section 15 of the Act has been declared not constitutional in the context of

Section 16 of the Punjab Act having been declared so, it could not be said that because of this other clauses of Section 15 or the whole Act for the

matter of that was repugnant to the Constitution. In State of Madras Vs. V.G. Row, , Patanjali Shastri, C. J. observed that the test of

reasonableness wherever prescribed should be applied to each individual statute impugned. No abstract standard or general pattern of

reasonableness can be laid down as applicable to all cases.

There can be little doubt that the law of pre-emption does impose restrictions on the right of both the vendee and the vendor. It has been

rightly said that it was a clog on the freedom of sale and tends to diminish the market value of the property. If however it is shown that the

restrictions laid on the purchase and sale of the property are reasonable, the courts of law are bound to give effect to such restrictions within the

provisions of the Constitution, It has not been an easy task to precisely and clearly define the words 'reasonable restrictions' and define its limits.

However the following passage from Sardha Ram and Kanhya Lal Vs. Abdul Majid Mohd. Amir Khan and Others, may be of some help to

understand these words : (At p. 199)

By the term 'reasonable' is not meant expedient, nor that the conditions must be such as the court would impose if it were called on to prescribe

what should be the conditions. They are to be deemed reasonable where although perhaps not the wisest and best that might be adopted they are

fit and appropriate to the end in view, to wit, the protection of the public and are manifestly adopted in good faith for that purpose. An act is

reasonable when it is conformable or agreeable to reason, that is when common sense is applied to the whole situation, it is not illegitimate in view

of the end to be attained. An act is unreasonable when it is plainly and grossly oppressive and contrary to reason"".

We are entirely in agreement with what has been said in this passage by the Full Bench of the Punjab High Court. The easement more clearly

referred as 'fifthly' in the Prior Purchase Act on all counts appears to us to be a restriction but a reasonable one. It is not contrary to reason, is not

oppressive and appears to be fair in the circumstances.

It will therefore be reasonable to conclude that the restriction by way of an easement mentioned in Clause 'fifthly' of the Act is a reasonable

restriction as in our view it will reduce the chances of litigation and friction and that it would promote public order and also help in domestic

comfort and further promote public and private decency and convenience.

We are therefore of the view that Clause 'fifthly' of the Right of Prior Purchase Act of the J & K State was constitutional and was a reasonable

restriction within the provisions of the Constitution on the fundamental right mentioned in Article 19(1)(f).

The reference is accordingly answered and both the cases shall be sent to the learned single Judge for further necessary action.

Mian Jalal-Ud-Din, C.J.

I agree.

Kotwal, J.

I agree with my learned brother Mir, J. that Clause 'fifthly' of Section 15 of the J & K Right of Prior Purchase Act is constitutionally valid and

does not infringe Article 19(1)(f) of the Constitution. I would, however, like to give my own reasons to support this conclusion.

It is now too late in the day to urge that right of pre-emption does not create any restrictions so far as the acquiring, holding or disposing of

property is concerned. A vendee's right to acquire or hold the property is always subject to the superior right of the pre-emptor whereas a vendor

too may some time come across similar difficulty in disposing of his property. He may for instance like to sell his property to a friend or relative at a

much lower price but may not be able to do so, if the sale is likely to be pre-empted by a person to whom he does not want to show any favour.

The fact that right of pre-emption is not a personal right but a right attached to the property sold, and therefore an incident of the property which

must pass on to the vendee along with the property cannot detract from this conclusion. The controversy existing on this point has been finally set

at rest by the Supreme Court in Bhau Ram Vs. B. Baijnath Singh, wherein it has been held : (At p. 1479)

.....We are of opinion that even if the law of pre-emption creates a right which attaches to property it would be creating a restriction so far as the

acquiring, holding of disposing of property is concerned which was not enacted. Therefore, even if the liability attaches to the property, it will still

amount to a restriction on the right guaranteed by Article 19(1)(f), when it attaches to the property by the law of pre-emption.

Pre-emption (Shufa) was unknown to Indian society prior to the advent of Muslim rule. While tracing the origin of the law of pre-emption

Mehmood, J. in Govind Dayal v. Inayat Ullah ILR (1885) All 775 (FB) observed: ""The law of pre-emption is essentially a part of Muhammadan

Jurisprudence. It was introduced into India by Muhammadan Judges who were bound to administer Muhammadan Law."" This law was gradually

adopted as a custom by the non-Muslims as well, which was upheld as based upon justice, equity and good conscience, for the reason that a non-

Muslim who dealt with a Muslim knowing perfectly well the conditions and obligations under which the property was held could not be permitted

to ignore them, merely because the Muhammadan Law did not apply to him. (Gobind Dayal's case Supra). With the passage of time this custom

got statutory recognition in most parts of northern India where Muslim rule had greater impact and several pre-emption laws came to be passed

embodying almost similar provisions. This also explains why the custom of pre-emption was held opposed to justice, equity and good conscience

by the Courts in southern parts of India but held to be based upon justice, equity, and good conscience by courts in northern parts of India, (See

Ibrahim v. Munni Mini-Din (1870) 6 Mad 26 and Mahomed Beg Amin Beg and Another Vs. Narayan Meghaji Patil and Others, . There were

various considerations, as for example preserving purdah among females, according discriminatory treatment on the ground of religion, race or

clan, and preserving and promoting religious fraternity among Muslims which necessitated introduction of law of preemption during early Muslim

rule. The object was to keep strangers or non-Muslims away as far as possible. The three categories of this right were co-sharership (Shafi-i-

Sharik), participation in immunities and appendages including easement (Shafi-i-Khalid), and neighbourhood (Shafi-i-Jar). This is clearly reflected

in the various pre-emption laws, which are in force as well as the custom of pre-emption which is being followed in various parts of the country

even today. A slightly deeper study of Section 15 of the Right of Prior Purchase Act would reveal that clauses, 'Firstly', and 'secondly' of this

section are relatable to the first category, Clauses 'Thirdly', 'Fourthly' and 'Fifthly' are relatable to the second category, and Clause 'Sixthly' is

relatable to the third category.

With the end of foreign rule in India all these notions which even otherwise had by then become antiquated on account of various structural

changes in society and polity lost most of their relevance. The Constitution guaranteed to the citizens of India certain fundamental rights including

the right to acquire, hold, and dispose of property. All laws whether anterior or posterior were declared void under Article 13 to the extent they

were inconsistent with these rights though these rights too were subjected to certain restrictions. The Constitution preached fraternity not on the

basis of religion but on the basis of citizenship and abhorred discrimination on the ground of caste, creed, place of birth, religion, or sex. We are

presently concerned with the restrictions imposed on the right under Article 19(1)(f) to acquire, hold or dispose of property. This right could be

restricted by the State provided the restriction imposed was reasonable and was also in the interests of the general public or security of the State.

Security of the State is plainly not an object sought to be achieved by the Act. In short, if Clause 'Fifthly' is found to impose a restriction, which is

not only reasonable but is also in the interests of the general public, then the clause must be held to be constitutionally valid, whereas if none or

even one of the aforesaid two conditions is not satisfied then the clause has to be held to be unconstitutional.

Reasonable is that which stems from reason, which is not arbitrary, or capricious. A reasonable restriction as such must be one which has a

reason to be imposed. This reason may be to achieve a certain object. There must be, therefore, a nexus between the restriction and the object

sought to be achieved. Furthermore, the object must not be repugnant to the letter or even spirit of the Constitution. A notion which at one time

used to be considered as a value may be only an evil after the enforcement of the Constitution. Take for example the case of untouchability or

discrimination on the ground of sex, caste, creed or religion all of which were at one time regarded as fundamentals of the society but have now

been declared as un-constitutional. Viewed thus, the restriction contained in Clause 'Fifthly' cannot be deemed to be reasonable if the only purpose

which it is supposed to serve is the preservation of religious fraternity or to make discrimination on the ground of religion, race or clan, for that

would be contrary to Article 15 of the Constitution. But, this is not the only ground upon which it can be defended. It tends to facilitate a much

better and convenient use of the servient and dominant property besides putting an end to the litigation that might ensue between the owners of

these two tenements. On the vesting of the ownership rights of both these tenements in one person, he can make necessary additions and

alterations in one tenement or the other in such a way that both of them are put to a more profitable use. This is surely a reasonable restriction

which is also in the interests of the general public. Support for this view is available from a Full Bench judgment of the Madhya Bharat High Court

in Babulal v. Gowardhandass AIR 1956 Mad 1, wherein is was held : (At p. 6)

As to Sub-sections (1) and (5) of Section 12, which give to a co-sharer and to the owners of dominant and servient properties the right to pre-

empt, I am inclined to take the view that they are reasonable provisions. The reasonableness is to be found in the fact that in the case of such

persons the effect of the right is to place them in a favourable position for better and quiet enjoyment of the immovable property they possess. This

consideration of beneficial enjoyment of the property is absent in the case of a pre-emptor by mere vicinage.

A similar view appears to have been taken in an earlier Full Bench decision of the Rajasthan High Court in Panch Gujar Gaur Brahmans Vs.

Amarsingh and Others, wherein the court while making a distinction between the grounds of vicinage and easement observed as under :--

.....While something can be said in favour of reasonableness of the restriction which may allow a co-sharer or a participator in immunities and

appendages to have a right of preferential purchase in respect of the property sold by another co-sharer or participator in immunities and

appendages and such a restriction may also be in the interests of the general public which includes a section of the public the reasonableness of the

restriction which may deprive the purchaser of his property on a claim by a neighbour on the sole ground that his property stood adjoining the one

sold required examination.....

A similar view taken by a Full Bench of this court in Sewanath v. Faqir Chand, AIR 1965 J&K 62, is, therefore, not open to question. I now

proceed to examine the three decisions of the Allahabad High Court, which have been relied upon by Mr. Choudhry in support of his contention

that Clause 'Fifthly' is violative of Article 19(1)(f) of the Constitution.

In Mahboob Hasan and Another Vs. Ram Bharosey Lal and Another, one of the questions referred to the Bench was s Whether a custom of

pre-emption on the ground of easementary right (Shafi-i-Khalit) was void under Article 13 of the Constitution. This question was answered in the

affirmative on the ground that sale of servient tenement to a stranger could not bring about the extinction of easementary right of the owner of

dominant tenement over it and was, therefore, an unreasonable restriction on the right of the vendee to acquire the servient tenement. With utmost

respect to the learned Judges who constituted the bench, it is difficult to fall in line with them in taking this view. To begin with, the learned Judges

pre-supposed that the only purpose which could be achieved by pre-empting the sale of servient tenement was preservation of easementary rights

of the owner of the dominant tenement over it. Secondly they did not envisage the benefits which would accrue to the owner of the servient

tenement by pre-empting the sale of dominant tenement. It is interesting to find that even the learned Judges themselves expressed a doubt whether

the restriction could be termed unreasonable under all circumstances. It is clearly reflected from the following observations contained in the

Judgment: (At p. 273)

Since the claim of a shafi-i-khalit may be based on a variety of grounds it is difficult to lay down definitely that such a right can or cannot be

recognised as a reasonable restriction in the in- terest of general public within the meaning of Clause (5) of Article 1ft. Whether such a claim would

be protected under Clause (5) of Article 19 will depend upon the nature of the claim made by a Shafi-i-Khalit.

Here again the approach made by the learned Judges does not seem to be correct. A provision cannot be held to be ultra vires under a

particular set of circumstances and intra vires under a different set of circumstances. The vice of unconstitutionality must be absolute which holds

good under all circumstances.

The next case relied upon by the learned counsel is Jagdish Saran Vs. Brij Raj Kishore and Another, . In this case pre-emption was claimed

on two grounds, viz: right to flow water through a common spout and right to rest beams on the walls intervening the shop of the pre-emptor and

the shop sold. On facts none of these grounds was held to create any easementary right in favour of the plaintiff. As regards the second ground it

was further held that it could at best clothe the plaintiff with the status of Shafi-i-Jar and vicinage having been already struck down by the Supreme

Court in Bhau Ram Vs. B. Baijnath Singh, , the plaintiff was held to have no right to pre-empt the sale. The Full Bench however approved the

decision in Mahboob Hasan and Another Vs. Ram Bharosey Lal and Another, , even though its correctness did not strictly fall for its

consideration.

To the same effect is the latest decision of the said court in Phool Chand Vs. Lala Neem Chand and Another, which is simply based upon its

two earlier decisions discussed heretofore. The view taken by this court and the High Courts of Madhya Bharat and Rajasthan in the three Full

Bench decisions mentioned heretofore appears to be reasonable that right to pre-empt sale of the servient tenement by the owner of the dominant

tenement and vice versa is not violative of Article 19(1)(f) of Constitution.

Anand, J.

I have had the advantage to go through the judgments prepared by my learned brothers Mir, J. and Kotwal, J. I entirely agree with the

reasonings and concur with the view of my learned brothers that Clause 'fifthly' of Section 15 of the J. & K. Right of Prior Purchase Act, even

though a restriction in so far as acquiring, disposing or holding of property is concerned, is nonetheless a reasonable restriction and does not

infringe Article 19(1)(f) of the Constitution of India.