BHAU RAM SUKHDEO NARAYAN PATIL AND ANOTHER KESAR DEVI ADVOCATE GENERAL FOR STATE OF RAJASTHANINTERVENER Vs. BAIJ NATH SINGH MOTI RAM NANAK SINGH

JUDGEMENT

(1.) These three appeals which have been heard together raise the constitutionality of certain provisions of the pre-emption laws prevailing in the States of Madhya Pradesh (Rewa-State aeara), Delhi and Maharashtra (Berar-area). Three suits for pre-emptioin were brought by pre-emptors which were decreed, and the present appeals are by purchasers. Though the appeals were heard together as some of the points involved were common, it would be convenient to deal with each appeal separately because the law involved in each case is different.

(2.) We shall begin with C. A. 270 of 1955. This is concerned with the Rewa State Pre-emption Act, 1946 (hereinafter called the Rewa Act), and particularly with S. 10 thereof, which is in these terms:-

(3.) The question therefore that arises is whether a right of pre-emption by vicinage offends Art, 19 (1) (f). There has been divergence of opinion between various High Courts on this question. The High Courts of Rajasthan, Madhya Bharat an Hyderabad and the Judicial Commissioner, Vindhya Pradesh have taken the view that such a right of pre-emption offends Art, 19 (1) (f) while the High Court of Punjab has, held otherwise. Before, however, we deal with the main points urged in this case we may notice the argument based on the decision of this Court in Audh Behari Singh vs. Gajadhar Jaipuria (1955) 1 SCR 70 where it was held that the law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser . The argument is that since the right of pre-emption attaches to the property sold it is an incident of property, and therefore cannot be held to be a restriction on the right to acquire, hold and dispose of property. On the other hand it is urged that if the law of pre-emption creates a right which is an incident of property, even so it would be a restriction created by law on the fundamental right guaranteed under Art 19 (1) (f) of the Constitution. 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 or disposing of property is concerned which was not there before the law of pre-emption was enacted. Therefore, even if the liability attaches to the property, it will still amount to a restriction on the right, guaranteed by Art, 19 (1) (f)when it attaches to the property by the law of pre-emption.