Lehnu Ram vs Bihari Lal etc.

Chet Ram Thakur, J.—This is an application under Article 133(1) of the Constitution of India for a certificate for appeal to the Supreme Court against the judgment of this Court, dated 6th March, 1972.

According to Section 15 of the Punjab Preemption Act, 1913 (hereinafter called the Act of 1913) the right of pre-emption in respect of the agricultural land and village immovable property was conferred on person mentioned thereunder. According to Clause (b) sub-clause fourthly of Section 15 of the Act of 1913 the right was conferred on all the co-sharers in the case of sale of a share out of a joint land or property where it is made by all the co-sharers jointly. Section 8 of this Act gave powers to the local Government to exclude any local area so that any class of sale, could not give rise to a right of pre-emption. Accordingly on 6th March, 1917, the Punjab Government issued notification No. 4669 in exercise of its powers u/s 8 of the Act of 1913 excluding the persons mentioned in sub-clause fourthly of Clause (b) of Section 15 from exercising the right of pre-emption, in respect of the sales mentioned in the notification. Thereafter in the year 1960 Section 15 of the aforesaid Act was amended whereby under Clause (b) firstly, secondly and thirdly a co-sharer was given a right to pre-empt the sale of a share out of a joint land by one of the co-sharers in the order given therein, and under Clause (b) fourthly of Section 15 the right of pre-emption was given to other co-sharers.

The suit out of which this petition has arisen was filed by the Plaintiff-Petitioner to pre-empt the sale made by Smt. Dugli on the ground that he was a co-sharer with her. The Defendants raised a plea that the suit was not maintainable inasmuch as the right of a co-sharer to pre-empt the land had been taken away in so far as District Kangra, of which the present District Kulu was a part, was concerned. The Plaintiff thereup on contended that in view of the drastic changes effected in Section 15 of the Act of 1913 by virtue of the Punjab Pre-emption (Amendment) Act, 1960 (hereinafter called the Amendment Act of 1960) the entire section stood substituted by a new section and that the notification of 1917 had become a dead wood, it could not be reconciled and made to stand together with this amendment. The contention of the Plaintiff did not find favour with the Subordinate Judge, Kulu, and he held that the notification still holds the field and that it was not in any way repealed and he, therefore, dismissed the suit. The District Judge on appeal reversed the finding of the Subordinate Judge and decreed the suit of the Plaintiff. Thereafter the Defendant filed an appeal in the High Court. The appeal was accepted by this Bench. The judgment and decree of the District Judge were reversed and the judgment and decree dismissing the suit of the Plaintiff by the Subordinate Judge were restored. It was held by this Court that the Plaintiff-pre-emptor being a co-sharer already stood excluded from claiming a right of pre-emption under the notification of 1917, which remained unaffected by the re-enacted Section 15. The said notification excluded the co-sharers in Kangra district (because at the time when the notification was enforced Kulu was a part of Kangra district) from claiming pre-emption. The notification was held not to be inconsistent with the provisions re-enacted and that the notification was not repealed. The question, therefore, is whether by the amendment of Section 15 of the Act of 1913 by the Amendment Act of 1960 the notification dated 6th March, 1917, stood repealed so as to entitle a co-sharer to pre-empt a sale of the joint property made by one of the co-sharers or the notification still holds the field so as to exclude the co-sharers from claiming a right of pre-emption. The point as to what is a substantial question of law of general importance had been decided by their Lordships of the Supreme Court in Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., , and it was held:

The proper test for determining whether a question of law raised in the case is substantial would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd, the question would not be substantial question of law.

Bearing in mind this test it has got to be seen whether the present is a case which satisfies the requirements as laid down in this authority. It is undisputed that this is a matter which not only affects the parties in the present case but it is a question which will affect the other persons also who may claim a right of pre-emption on the basis of their being co-sharers in the District of Kulu, Kangra, Lahaul and Spiti and Hamirpur which were parts of Kangra district. The judgment would govern not only the parties but the people at large in all the afore-mentioned districts and, therefore, the people in the other districts would be affected by this judgment which has decided this case and it has got a bearing upon the people in quite a sizeable area of Himachal Pradesh. There is also no authority of the Supreme Court on the scope and the effect of this notification on the amendment of Section 15 of the Act of 1913 by the Amendment Act of 1960, whereby co-sharers have again been included in the category of persons who have been given the right to pre-empt the sale by a co-sharer.

Further the question of law whether this notification has been impliedly cancelled or it still holds good is a fairly an arguable point and there is room for difference of opinion on it. There already exists a Division Bench authority of the Punjab High Court, Parja Ram v. Ganga Ram 1966 P.L.R. 616, which has taken a contrary view. It has been held:

The notification regarding Kangra district in 1917 has not either been completely cancelled or suitably amended so as to make it applicable to the provisions of Section 15 as amended by the Act of 1960. It is in fact obviously completely impossible to apply the notification to the section in its present form. If it was sought to be applied it would produce some absured results such as that whereas a tenant, now appearing at fourthly in Clause (a), would enjoy the right of pre-emption under the terms of the notification in the case of a sale by a sole owner, covered by the old (a) he would not enjoy it in a sale covered by Clause (b) of a share of joint land not made by all the co-sharers jointly or covered by the new (c) which is sub-division of the old (a).

Further, it held that the terms of the notification are impliedly cancelled by the amendment of the Act in 1960 and that it has become a piece of dead wood which must be ignored.

A similar question again arose in R.S.A. 289 of 1967 Gokal v. Santu, decided on 26th August, 1968 before the Delhi High Court, Himachal Bench, and it was held that qua co-sharers the notification of 1917 remained unaffected by there-enacted Section 15 and as such the said notification excluded co-sharers in Kangra district from claiming pre-emption. Therefore, from this it follows that there are divergent decisions of the High Courts and this is a matter which needs to be decided by the Supreme Court so as to have an authoritative pronouncement for future as there is no decision of the Highest Court on the point.

The learned Counsel for the Respondent has opposed this application on the ground that the amount involved in the appeal is so small that it would be oppressive if the Court granted leave and involved the Respondent in the cost of contesting the case in the Supreme Court and reliance is placed on 4 Moorse Indian Appeals 353 Sales Tax Officer and Another Vs. Jagat Behari Tandon, B. Raja Rajeswara Sethupathi, Raja of Ramnad v. Tiruneelakantam Servai and Anr. AIR 1923 Mad. 232, and Buckingham and Carnatic Co. Ltd., Madras v. Buckingham and Carnatic Mills Staff Union AIR 1960 Mad 509. But in my view all these authorities are beside the point in view of the scope of Article 133(1) as amended by the Constitution (Thirtieth Amendment) Act, 1972 which says that an appeal shall lie to the Supreme Court if the High Court certifies-

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

Therefore, the objection that the amount involved in the appeal is quite small and it would be oppressive to the Respondent if the Court granted a certificate, loses its importance.

In the light of the above, lam of the view that the question of law raised in this case is substantial inasmuch as it is of general public importance, not only it substantially affects the rights of the parties but of other people also because such question will arise in other districts of Kangra, Hamirpur, Kulu and Lahaul and Spiti. Moreover, there is a divergence of opinions between the judgments of this Court, the Delhi High Court, Himachal Bench, on the one side and the Punjab High Court on the other which has treated the notification as dead wood not affecting the amended Section 15 of the Amendment Act of 1960 which has now revived the rights of co-sharers to pre-empt the sale of a share of land by a co-sharer or by other co-sharers. It is also manifest that there is no decision of the Supreme Court on the point and the decision does not appear to be free from difficulty. Therefore, in my view, this question needs to be decided by the Supreme Court. Consequently, I hold that this is a fit case to allow this application for grant of a certificate for appeal to the Supreme Court and which I accordingly do.

D.B. Lal J.

I agree.