HABIB ULLAH Vs. GH AHMED BABA

JUDGEMENT

(1.) In view of the challenge thrown to the constitutionality of Sub-section (5) of Section 15 of the Jammu and Kashmir Right of Prior Purchase Act in the two civil second appeals, the matter has been referred to Full Court for consideration and adjudication. The learned counsel for the parties as well as the learned Advocate-General were heard in this regard.

(2.) The trial Court dismissed the suits holding that there was no right of prior purchase in the pre-emptor while the 1st Appellate Court reversed this finding of the trial Court and decreed the suits. It was against the judgment of the District Judge Anantnag that the present appeals have been filed in which, inter alia, an objection has been taken to the effect that the judgment and decree of the 1st Appellate Court not being in ac-cordance with law be set aside as the 1st Appellate Court has failed to take into consideration the unconstitutionality of "fifthly" of Section 15 of the Right of Prior Purchase Act. It was prayed that the judgment and decree passed by the 1st Appellate Court be set aside and the suit of the plaintiff be dismissed with costs.

(3.) Before proceeding further it would be profitable to note Section 15 of the Right of Prior Purchase Act, 1993 (hereinafter referred to as the Act), the 5th clause of which is subjected to the objection of being invalid on the basis of being unconstitutional. The whole section is reproduced below :