Rulia Ram vs Sadh Ram and another

Teja Singh, C.J.—This order will dispose of Civil Appeal No. 24 of 1951 and Civil miscellaneous Application No. 113A of 1951 by the Deputy Commissioner, Fatehgarh District, made to the Sub Judge 1st Class, Fatehgart at Bassi which have been withdrawn from that Court by our order of the date. See A. I. R. 1952 Pepsu 1 (FB). The facts of the litigation leading to the appeal and the Deputy Commissioner''s application are given in our above mentioned order, which will form a part of this order.

The issue in the case, as stated in our other order, was ''whether the Patiala Alienation of Land Act is void and the suit is maintainable''. In order to be able to understand the significance of the issue it is necessary to refer briefly to the relevant provisions of the Alienation of Land Act and the Pre-emption Act. Section 4 of the Alienation of Land Act empowers the Provincial Government to determine by a notification in the official gazette what bodies of persons in any District or group of Districts, are to be deemed to be agricultural tribes or groups of agricultural tribe fur the purposes of the Act. Sub-section (1) of S. 3 lays down that save as is provided elsewhere in the Act a person who desires to make a permanent alienation of his land shall be at liberty to make such alienation whether the alien or is not a member of an agricultural tribe or the alien or is a member of agricultural tribe and the alien or is a member of the same tribe or of the tribe in the same group. The words of sub-section (2) are:

In cases provided for in section 1 a permanent alienation of land shall not take effect as such unless and until sanction is given thereto by a Deputy Commissioner.

Sub-section (3) of the Section says that the Deputy Commissioner shall inquire into the circumstances of the alienation and shall have discretion to grant or refuse the sanction required by sub-section (2).

Section 23 of the Pre-emption Act lays down two conditions for the grant of a decree in a suit for pre-emption in respect of the sale of agricultural land. One of these conditions is that no decree shall be granted in such a suit until the plaintiff has satisfied the Court that the sale in respect of which pre-emption is claimed is not in contravention of the Punjab Alienation of Land Act. The vendee''s position in the present case is that since the vendor is a member of a statutory agricultural tribe, that is, a tribe which has been declared agricultural under the provisions of S. 3 of the Alienation of Land Act, and he is a non-agriculturist, the sale could not take effect as such without the sanction of the Deputy Commissioner and since no sanction was obtained the sale contravenes the provisions of the Alienation of Land Act and by virtue of S. 23 of the Pre-emption Act the plaintiff''s suit was liable to be dismissed on this short ground.

The position of the plaintiff, on the other hand, is that section 3 of the Alienation of Land Act being inconsistent with clause (f) of Article 19 of the Constitution of India, has become void and accordingly section 23 of the Pre-emption Act has become meaningless and unenforceable. So with a view to determining the issue in the case we shall have to decide two questions. The first is whether S. 3 of the Alienation of Land Act has become void, and the second is, 11 the answer to the first question be in the affirmative, whether section 23 of the Pre-emption Act could suit bar the Court from decreeing the plaintiff''s claim on the ground that the vendor was a member of statutory agricultural tribe while the vendee was a non-agriculturist.

Article 13 of the Constitution provides, inter alia, that all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are inconsistent with the provisions of Part III of the Constitution which deals with the fundamental rights, snail, to the extent of such inconsistency be void. Article 19 deals with the right to freedom. Clause (1) of it lays down that all citizens shall have the right (a) to freedom of speech and expression; (f) to acquire, hold and dispose of property. It is enacted in. clause (5) that nothing in sub-clauses (d), (e) and (f) of clause (1) 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 exerciser of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any scheduled tribe. Reading Art. 13 with Art. 19, the inference is clear that every law in force in the territory of India immediately before the commencement of the Constitution which imposes any restriction on the exercise of any of the rights mentioned in clause (1) of Art. 19 has become void unless the restriction is reasonable and is either in the interests of general public or for the protection of any of the interests of any scheduled tribe.

Now the question is whether the restriction imposed by S. 3 of the Alienation of Land Act upon the power of the members of statutory agricultural tribes to dispose of land satisfies the conditions of clause (5) of Art. 19, and fortunately for the plaintiff neither the appellant''s counsel nor the counsel who appeared for the Deputy Commissioner contended before us that this was the case. In fact, both the learned counsel frankly admitted that the restriction was not reasonable and whether or not it was in the interests of the tribes notified to be agriculturists, it was certainly not in the interests of the general public. No question of the restriction being for the protection of the interests of any scheduled tribe arose in the present case, because the tribe to which the vendor and the vendee belongs is not a scheduled tribe. In the face of this admission on the part of the appellants and the petitioner''s counsel we have no other alternative but to hold that S. 3 of the Alienation of Land Act, in so far as it restricts the power of members of notified agricultural tribes to alienate agricultural land is inconsistent with Art. 19 of the Constitution and accordingly it is void.

Now as regards S. 23 of the Pre-emption Act. This section was enacted with the object of preventing non-agriculturists from purchasing land from members of agricultural tribes, directly or indirectly, in contravention of the provisions of the Alienation of Land Act and of ensuring that all orders and decrees passed by subordinate Courts should be strictly in conformity with the provisions of that Act. When a member of a statutory agricultural tribe sells land directly to a non-agriculturist without the sanction of the Deputy Commissioner the sate cannot take effect as such and S. 3 of the Alienation of Land Act gave the power to the Deputy Commissioner to turn it into a mortgage for a specified number of years not exceeding 20. Now, no such provision existed with regard to a sale which contravened the provisions of S. 3 of the Alienation of Land Act but which was later on preempted and the land sold was taken hold of by a pre-emptor in execution of a decree in a preemption suit when that pre-emptor also happened to be a non-agriculturist.

It was with the intention of meeting cases of this kind that S. 23 of the Pre-emption Act was enacted, but when S. 3 itself has become void and the sale by a member of a statutory agricultural tribe to a non-agriculturist is as good and effective as any other sale, that part of S. 23 of the Pre-emption Act which makes it obligatory on the part of a plaintiff in a pre-emption suit to satisfy the Court that the sale pre-empted by him is not in contravention of the Alienation of Land Act becomes meaningless and superfluous. The result is that if the pre-emptor is otherwise entitled to a decree the Court cannot refuse to grant him the relief claimed under S. 23(a) of the Pre-emption Act.

It may here be mentioned that Shri Chetan Das, counsel for the Deputy Commissioner, argued that a sale by a member of a statutory agricultural tribe to a non-agriculturist stood on the same footing as sale in respect of any land or property exempted from pre-emption under Sub-section (2) of S. 8 of the Pre-emption Act. The words of the sub-section are:

The Local Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sale no right of pre-emption or only such limited rights as the Local Government may specify shall exist.

Counsel conceded that no notification in respect of the sale in question or in respect of the property to which the sale relates has been issued by the Government, but he submitted that by enacting S. 23 and laying it down therein that when a sale contravenes the provisions of the Alienation of Land Act the Court shall not pass any decree in a pre-emption suit in respect of that sale, the legislature intended to lay down that such a sale shall not be pre-empted. As I have already pointed out the object of S. 23 was to prevent non-agriculturists from defeating the provisions of the Alienation of Land Act by having sales made in contravention of the Act and preempting them later on, and the sales that came within the ambit of that Section stand entirely on a different footing from those exempted under S. 8. Then S. 8 applies only to those sales declared to be exempt from the right of preemption by Government and we cannot extent its operation to any other kind of sales. In my opinion, the learned counsel''s contention is wholly devoid of force.

For all these reasons, I would hold that the issue in the case was rightly decided in the plaintiff''s favour and the appeal as well as the application must stand dismissed with costs.

Passey, J.

I agree.

Chopra, J.

I concur.