KRISHNA MINOR Vs. STATE OF HARYANA

JUDGEMENT

(1.) The law of pre-emption is, historically speaking, a product of custom of the Mohamedan world. It came to be enforced here after the advent of Mohamedan Rule. To start with it was accepted as a part of custom and was applied by the courts, particularly in Northern India accordingly. It received statutory recognition in Section 22 of Hindu Succession Act, 1956. But this Court has regarded this right as archaic, feudal and weak in character.

(2.) In most of our States the law of pre-emption does not exist as at present. Even the Punjab Pre-emption Act of 1913 (as amended in 1960) has ceased to be a law in the State of Punjab. But in the State of Haryana, as well as in a part of walled city of Delhi, it still prevails. In the present batch of writ petitions and appeals whatever is left of this law after the decision by the Constitution Bench in Atam Prakash v. State of Haryana, AIR 1986 SC 859 has been assailed as violative of Article 14 of the Constitution and of Article 19(1)(f) as it was before its omission.

(3.) As the aforesaid attempt has been made despite the decision in Atam Prakash. it should be known as to what was decided in that case. Reference to that judgment shows that it relied on three earlier Constitution Bench renderings - these being in Bhau Ram v. Baij Nath, AIR 1962 SC 1476; Sant Ram v. Labh Singh, AIR 1965 SC 314 and Ram Sarup v. Munshi, AIR 1963 SC 553. In Bhau Ram's case (supra) this Court was concerned, inter alia, with the constitutionality of Section 16 of the Punjab Pre-emption Act, 1913, which conferred right of pre-emption in respect of urban immovable property on co-sharers also. The Constitution Bench did not uphold the contention that this restriction offended Article 19(l)(f) of the Constitution. This is what was stated in this regard in paragraph 11.