Vithal Rao and Others vs Mahadu

Bilgrami, J.—This case was withdrawn from the Court of the Munsif at Ahmedpur under Article 228 of the Constitution as a question of interpretation of the Constitution of some importance is involved in it which was necessary for the decision of the case. This was a suit for pre-emption; it is common ground that Defendant 5 sold the disputed plot of land, survey No. 13, measuring 28 acres, 25 guntas, situate in Tamat Sangir, Taluq Ahmedpur, District Bidar, to Defendants 1 to 4 on 6-6-1951 for Rs. 8000/-.

The Plaintiff filed the suit demanding preemption u/s 12. Zabtai Shikmidaran on the ground that he is Defendant 5''s shikmidar, and also under the Mohammadan Law as the owner of the neighbouring land. The Defendant denied that the Plaintiff made any demands, and averred that he has consented to this transaction. An objection was also raised that after the commencement of the Constitution, a suit for pre-emption cannot be maintained under Zabtai Shikmidaran and regarding this an issue was also framed. The Court below decided this issue in favour of the Plaintiff on 4-8-1954.

In - ''Moti Bai v. Kand Kari Channava AIR 1954 Hyd 161 (FB) (A), it was held by a Full Bench of this High Court, that pre-emption under the Mohammadan Law which applied to every one by custom offended the provisions of Article 19(1)(f) of the Constitution, as it was a clog on the freedom of purchase and sale of the property guaranteed under the above Article.

The question therefore arose as to whether the same will apply to a case of pre-emption u/s 12 of the Zabtai Shikmidaran and this case was withdrawn under Article 228 of the Constitution for decision on this point.

Shri Phoolchand Gandhi for the Defendant-applicants argues that whatever may be the 48 Hyderabad view of the other High Courts, with regard to the validity of the statutory provisions conferring the right of pre-emption, this Court is bound by the Full Bench decision in ''Moti Bai''s case (A)'', and that no distinction can be reasonably drawn for the purposes of the application of the principle laid down in that case between the statutory provisions for pre-emption, and the pre-emption under the personal law or custom.

We are of opinion that the distinction is fundamental and obvious. To limit the liberty of the purchase and sale of land of any particular class, with a definite object of welfare of such class may he permissible and considered reasonable restriction, whereas subjecting every citizen to the restriction may not be deemed so.

When a right is guaranteed under a Constitution, it does not mean that ''the power to curtail and restrict or to set any limits to the exercise of such rights is altogether taken away from the legislature. In the interest of any particular class of people, or the citizens in general, or the State or for their welfare and progress, the exercise of such rights can always be curbed to the extent necessary and inevitable.

It is only when the legislature transgresses such limits, that a law can be said to infringe the guaranteed rights of the citizens. What is "reasonable restriction" has been defined by the Supreme Court in the following terms in - Dwarka Prasad Laxmi Narain Vs. The State of Uttar Pradesh and Others, :

The phrase "reasonable restriction" connotes that the limitation imposed upon a person in enjoyment of a right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.

Many States in India at sometime or another in the interest of the agricultural community have made statutory provisions for preemption. It has been considered necessary for promoting harmony among the cultivators, and for avoiding friction among them and preventing fragmentation of petty holdings and intrusion of the strangers, to do so.

In a number of cases of different High Courts after the commencement of Constitution in which the validity of enactments conferring powers to pre-empt on cultivators was challenged, it has been uniformly held that they do not in Cringe the fundamental right conferred under Article 19(1)(f) of the Constitution. See in this regard - Abdul Hakim Vs. Jan Mohammad and Others, , a case in which the law impugned was the Agra Pre-emption Act, 11 of 1922.

It was held that this Act was passed for the welfare of the people; its object was to avoid litigation, consolidate property, and promote harmony in the agricultural community, and the restriction it imposes on the sale and purchase of agricultural lands is a reasonable restriction, and is not repugnant to Article 19(1)(f) of the Constitution, and cannot be considered void under Article 13(1) of it.

Similarly, the Punjab High Court in - Punjab State Vs. Inder Singh and Others, held that though pre-emption is a clog on the freedom of sale, this may be permitted where such restriction is in the interest of a particular community, or a class of people.

It has been pointed out that the Section 15, Punjab Pre-emption Act, has as its object the prevention of fragmentation of holdings, which is desirable in the interest of agricultural classes and therefore the restriction that it imposes is not unreasonable, and cannot be impugned under Article 13(1) of the Constitution.

This view was re-affirmed by the Full Bench of the same High Court consisting of Bhandarl C.J., Harnam Singh and Kartar Singh JJ. in - Uttam Singh Vs. Kartar Singh and Others, The view we have expressed of the matter is fully supported by these decisions.

A Full Bench of the Nagpur High Court consisting of Sinha C.J., Deo, Hidayatullah and Kaushalendra Rao JJ. in - ''Ramchandra v. Janardhan'' (S) AIR 1055 Nag 225 (FB) (F) has recently considered the validity of statutory rules regulating the right of pre-emption as contained in Chapter IV, Berar Land Revenue Code.

It was held that these provisions do not infringe the provisions of Article 19(1)(f) of the Constitution, because these rules were intended for the benefit of the class of persons coming within the category of holders of certain tenure, and ensures that lands held by occupants by divisions and sub-divisions should not become uneconomic holdings to the detriment of the interest of the community as a whole.

We have gone through the judgment to ''Moti Bai''s case (A)'' referred to above, carefully to which one of us was a party, and are fully satisfied that the reasoning given therein does not apply to the present case. In this case, the statutory provision applying only to a certain class of people for a particular reason is in question. One of the objects underlying Section 12 of the Zabtai Shikmidaran is, that a petty agricultural holding may not further be split up.

This reason does not exist when this restriction is imposed on people in general. Besides this, there is a greater need for harmony in relations between the cultivators, working in the neighbouring fields and therefore what may be considered as an unreasonable curtailment of liberty to sell and purchase land in the case of others, will not be so in the case of cultivators of a village.

Shri Phoolchand Gandhi further argues that the considerations of preventing intrusion of strangers in the neighbourhood and preservation of harmony among the cultivators cannot apply to Section 12 of the Zabtai Shikmidaran, because this section provides for pre-emption between a pattedar and a shikmidar.

Since the Full Bench decision in - ''Sambu v. Balwant Rao 13 DLR 465 (G), this High-Court has consistently held in numerous decisions that followed on the point, that the right of patta and the right of possession and ownership are separate rights. It is possible for a person to have a right of pattedari, without a right for possession, and it is possible legally for him to transfer his patta without transferring the right of possession.

We wish to confine ourselves to the question which arises from the facts of this case, and feel that it is not necessary for the decision of this particular case, in which we have to consider the validity of the law impugned only with reference to its application to a case where a shikmidar cultivating a land in the vicinity of a pattedar who is also in possession of the land, is seeking to enforce his right of pre-emption under this law, and held that, Sections 12 and 14 of Zabtai Shikmidaran do not infringe the right conferred under Article 19(1)(f) of the Constitution. The case is accordingly sent back to the Court below for further inquiry in accordance with law. The costs will abide'' the final result.

Palnitkar, C.J.

I agree.