ATAM PRAKASH Vs. STATE OF HARYANA

JUDGEMENT

(1.) The archaic right of pre-emption based on consanguinity is in question in the several thousand writ petitions under Art. 32 of the Constitution. The constitutional validity of S. 15 of the Punjab Pre-emption Act, 1913 as applicable in the State of Haryana which incorporates this right is challenged. The State of origin of the Punjab Pre-emption Act, the State of Punjab, has repealed the Act in 1973. The Act, however, continues to be in force in the State of Haryana which originally formed part of the State of Punjab. The vires of S. 15(1)(a) of the Act was questioned in this Court in Ram Sarup v. Munshi, (1963) 3 SCR 858 : (AIR 1963 SC 553) on the ground that it offended the fundamental right guaranteed by Art. 19(1)(f) of the Constitution. It was ruled by a Constitution Bench that there was no infringement of Art. 19(1)(f) and that the provision was valid. The validity of S. 15 is now impugned primarily on the ground that it offends Arts. 14 and 15 of the Constitution.

(2.) The right of pre-emption based on consanguinity has been variously described by learned judges as 'feudal', 'piratical', 'tribal'. weak', easily defeated', etc. Fusing as it does the ties of blood and soil, it cannot be doubted that the right is antiquated and feudal in origin and in character. The right is very much like another right of feudal origin and character which subsisted here and there in India until recently, particularly amongst the princely families, namely, the right of succession by primogeniture. It is a well-known characteristic of feudalism that the control of the most important productive resource, land, should continue in the hands of the same social and family group. The right of pre-emption based on consanguinity is a consequence flowing out of this characteristic. It. is entirely inconsistent with our constitutional scheme. Since the Forty-Second Amendment. India is a socialist republic in which feudalism can obviously have no place and must go. Our Constitution now proclaims India as a sovereign, socialist, secular democratic republic in which the right to equality before the law and the equal protection of the laws are guaranteed and all citizens are assured that the State shall not discriminate on grounds only of religion, race, caste, sex, place of birth or any of them. The citizens are also assured of the right to move freely throughout the territory of India, to reside or settle in any part of the territory of India and to practise any profession or to carry on any occupation, trade or business. The State is further enjoined to direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. The right to property has also now ceased to be a fundamental right since the Forty-Fourth Amendment. The question now is whether this adjunct of the right to property, perhaps perfectly reasonable in a feudal society, can be constitutionally sustained in a society dedicated to socialistic principles. The question has to be examined with reference to Arts. 14, 15 and 19(1)(d) and (g), in the background of the Preamble to the Constitution and Art. 39(c) of the Directive Principles of State Policy. We think that the question has to be primarily answered with reference to Art. 14.

(3.) The Punjab Pre-emption Act, 1913 repealed the Punjab Pre-emption Act of 1905 and S. 12 of the 1905 Act which corresponded to S. 15 of the 1913 Act was as follows :