Tara Chand vs Mehta Durga Dass and Others

K.V. Gopalakrishnan Nair, J.—This is an appeal from judgment and decree of the A.D.M. Sub-Judge, Jammu, in a pre-emption suit

instituted by the Respondents. The Plaintiffs claimed right to pre-empt on grounds Fifthly and Sixthly of Section 15 of the Right of Prior Purchase

Act, 1993. In respect of the ground fifthly of Section 15 it was alleged in paragraph 2 of the plaint that for the past about 69 years the Plaintiffs

have been enjoying easement of light and air by means of the ventilators which opened towards the house sought to be pre-empted. Regarding

ground Sixthly they averred that their house was contiguous to the suit house. The Defendant denied the Plaintiff's claim and resisted the suit.

The Trial Court framed issue No. 1 which is as follows:

Whether the Plaintiffs have got any right of prior purchase with regard to this house, if so how? O.P.P.

The Trial Court disposed of this most important issue in the case in a very brief manner devoting it to just about 11 type written sentences. The

discussion merely stated that two respectable residents of Panjtirthi Mohalla where he suit house is situated have deposed that the ventilators of the

house of the Plaintiffs ""opened on the side"" of the suit house. The Trial Court further pointed out ""Ved Pal Assistant Engineer Municipality Jammu

who also inspected the spot and prepared the site plan Ex. P.W. 1 verifies this act."" This statement was reinforced by the circumstances that the

Defendant himself had in his statement dated 16-02-1962 admitted the existence of these ventilators. Nothing more is contained in the judgment of

the Court below on this point.

We have been taken through the evidence in the case. We do not find the case of the Plaintiffs that they have been enjoying casements of light and

air for more than the statutory period prescribed by Section 15 of the Easements Act established on the evidence. Nor is it possible to say that the

Plaintiffs have, made out that they have acquired easement rights so as to make their house dominant property and the suit house servient property

within the intendment of clause Fifthly of Section 15 of the Right of Prior Purchase Act. Nor has the Court below approached the question from

this necessary angle. This is a serious infirmity in the Judgment of the lower Court. To some extent this appears to have been caused by the

pleadings which cannot be said to be precise and clear. For this reason we are constrained to remit the case to the Court below for ascertaining

whether the Plaintiffs have acquired the easements claimed by them and whether the suit house is servient property in relation to the adjacent house

of the Plaintiffs and for deciding in the light of this determination the question of the Plaintiff's right to pre-empt the suit house. Both the parties will

be entitled to amend their pleadings in respect of ground Fifthly of Section 15 of the Right of Prior Purchase Act and in respect of acquisition by

the Plaintiffs of the easements of light and air and to adduce fresh and further evidence regarding issue No. 1.

Before concluding we have to notice the other ground on which the claim to pre-empt is based, namely, ground sixthly of Section 15 of the

Right of Prior Purchase Act. This ground refers to contiguity. It was urged on behalf of the Appellant Defendant that contiguity as a ground of pre-

emption is unconstitutional being repugnant to Article 19(1)(f) of the Constitution. In support of this contention our attention has been drawn to a

recent decision of the Supreme Court in Bhau Ram Vs. B. Baijnath Singh, . This decision has in the clearest possible terms laid down that the law

of pre-emption based on vicinage in so far as it deals with urban immovable property and house property is void being repugnant to Article 19(1)

(f) of the Constitution. This question can no longer be a matter of dispute after the weighty pronouncement of the Supreme Court. But the learned

advocate for the Plaintiffs Respondents has urged that this decision is not applicable to the Jammu and Kashmir State in view of Clause (7) added

to Article 19 by the President's Order of 14th May, 1954. Clause (7) reads as follows:

(7) 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.

On the strength of this provision the learned Counsel for Plaintiffs urged that the restriction imposed by the Right of Prior Purchase Act on the

fundamental right embodied in Article 19(1)(f) should be held to be reasonable restriction so far as this State is concerned. We are not impressed

by this argument. First, Clause (7) of Article 19 according to its plain tenor and ordinary meaning can have only prospective and not retrospective

operation. It has been laid down in a number of decisions of the Supreme Court that the provisions of the Constitution must ordinarily be given only

prospective operation. We see absolutely no reason why this well established rule of construction should not apply to Clause (7) of Article 19. The

plain terms of this clause do not suggest any retrospectivity. Nor can it be urged with any show of reason that this provision was necessarily

intended to be given retroactive operation. In fact this clause was to have effect only for a specified period of time from 14th May, 1954 when the

President's order modifying Article 19 was brought into force.

In the President's Order of 1954 the modification by way of addition of the new Clause (7) to Article 19 was to have force and effect only for a

period of five years. Thereafter the 1954 Order was amended on 23rd April, 1959 to extend the period of operation of Clause (7) for a further

period of five years. The specification of the period of time taken along with the wording of Clause (7) shows that Clause (7) was intended to be

only a temporary provision ensuring for a limited period of time during which the State Legislature was permitted to impose even excessive

restrictions on the exercise of certain fundamental rights and have the restrictions from constitutional attack and judicial scrutiny by declaring that

the Legislature deemed them to reasonable. 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 same to be enacted. This construction is borne out by the plain wording of Clause (7)

itself.

Secondly, from the mere existence of a pre-constitution enactment we cannot assume that the Legislature had deemed the restrictions therein

contained to be reasonable restrictions vis-a-vis fundamental rights embodied in Article 19. The question of the Legislature's deeming certain

restrictions to be reasonable can arise only in the context of the fundamental rights guaranteed under Article 19. At a time when these fundamental

rights were themselves not in existence and were not even heard of one cannot attribute to the legislature the impossible intention of imposing

restrictions on the fundamental rights which were then unborn and un known or of regarding any restriction as a reasonable falter on a fundamental

right. Clause (7) could, therefore, be pressed into service by the Legislature only after the fundamental rights came into being.

The Right of Prior Purchase Act was enacted several years before the dawn of the Fundamental rights. It will, therefore, be wholly untenable to

say that the Legislature in enacting the Right of Prior Purchase Act sought to impose restrictions on fundamental rights. Furthermore, unless the

Legislature has actually deemed certain restrictions on fundamental rights to be reasonable, that is to say, unless the Legislature has said that it

deemed those restrictions to be reasonable, Clause (7) cannot be invoked. It is, therefore, much too idle to seek assistance from Clause (7) of

Article 19 to put out of the way the decision of the Supreme Court in Bhau Ram Vs. B. Baijnath Singh, . We are satisfied that the Supreme Court

decision has full force and effect in the instant case and clause sixthly of Section 15 of the Right of Prior Purchase Act is, therefore, void as

contravening Article 19(1)(f) of the Constitution.

In respect of clause fifthly of Section 15 of the Right of Prior Purchase Act we have already come to the conclusion that the suit has to be

remanded to the trial Court for fresh disposal after giving the parties an opportunity to amend their pleadings suitably and also to adduce fresh and

further evidence. The judgment and decree of the trial Court are set aside and the suit is remitted to it for fresh disposal in the light of this judgment

and according to law.

The Plaintiffs Respondents have filed cross-objections regarding costs in the lower Court. These cross objections have not been pressed.

Further as the Appellant has substantially succeeded in this appeal the question of granting costs to the Respondents in the lower Court does not

arise. Costs in the suit as well as of this appeal will abids and follow the result of the suit in the trial Court.

Wazir, C.J.

I agree.