GALODHU Vs. NANAK CHAND

JUDGEMENT

(1.) IN a pre -emption suit filed in the Court of Munsiff Jammu one of the pleas raised in defence was that the right of Prior Purchase Act was ultra vires the Constitution and therefore void. The plea raised by the defendant did not find favour with the trial Court and it held that the Right of Prior Purchase Act was not ultra vires of the Constitution. Against this order the defendant came up in revision to this Court and in view of the importance of the question involved Shahmiri J., proposed that this revision application be disposed of by the Full Bench of this Court. This application, therefore, came up for hearing before the Full Bench.

(2.) THE case involves interpretation of Art. 191 f read with Cl. 7 added to the Article under para. 4diii of the Constitution Application to Jammu & Kashmir Order 1954, and certain provisions of the Jammu & Kashmir Right of Prior Purchase Act. 1993. It is contended on behalf of the defendant vendee that the Right of Prior Purchase Act is ultra vires as its provisions contravene Art. 19lf of the Constitution. It is argued that Ss. 14 and 15 of the Right of Prior Purchase Act impose restrictions on freedom to acquire, hold and dispose of property and these restrictions not being in the nature of reasonable restrictions interfere with the right of an individual to buy and sell property and cannot, therefore, be allowed to stand. The learned counsel for the petitioner relied of a ruling of the Hyderabad High Court reported as - Moti Bai v. Kand Kari, AIR 1954 Hyd 161 FB, A in which it was held that the customary law of pre -emption as enforced by the Courts in Hyderabad State prior to the Constitution violates the fundamental right under Art. 19lf of the Constitution and, therefore, has become void and unenforceable under Art. 131 after the coming into force of the Constitution of India.

(3.) THE above ruling would not be of much assistance to the applicant. In Art. 19 of the Constitution as applicable to our State by the Constitution Application to Jammu & Kashmir Order, 1954, there is Cl. 7 especially added which reads as under: "The words "reasonable restrictions" occurring in Cls. 2, 3,