# [1986] 1 S.C.R. 399

- **Citation:** [1986] 1 S.C.R. 399
- **Court:** Supreme Court of India
- **Decided:** 1986-02-27
- **Bench:** P.N. Bhagwati, 0. Chinnappa Reddy, R.B. Misra, V. Khalid, G.L. Oza
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1986-1-s-c-r-399-9268
- **Pages:** 22

## Headnote

399
Punjab.Pre-emption Act 1913, as applicable in the State
of Haryana, s. 15 - Whether constitutionally void.
A
B
Interpretation of statutes - Provision of Conatitution
C
· sought to be interpreted or a statute whose constitutional
validity is sought to be questioned - Interpretation that will
promote march & Progress towards -a Socialistic Democratic
State - To be given.
Section 15 of ·the Punjab Pre-emption Act,
1913 as
applicable in the State of Haryana, incorporates the right of
pre-emption based on conaanguinity. The petitioners challenged
this right of pre-emption based on consanguinity under Art.32
of the Conatitution on the ground that it offends Arts. 14 and
15 of the Conatitution. It was contended on behalf of the
respondent-State that the classification in f awur of the
persona mentioned in section 15 has been made on reasonable
basis . in the interests of the public: (i) to preserve integrity of village comamity; (ii) to avoid fragmentation of
holdings; (iii) to implement the agnatic theory of succession;
• (iv) to promote public and private decency; (v) to facilitate
tenants to acquire ownership rights; (vi) to reduce litigation
consequent to introduction of an outsider on family property
or jointly owned property.
Allowing the writ petitions,
llKID;
l(i)
There
is
no
justification
for
the
classification contained
in section
15
of
the
Punjab
Pre-emption Act of the kinafolk entitled to pre-emption •. The
,
right of pre-emption based on conaanguinity is a relic of the
) •.feudal psst. It is totally inconsistent with modern ideas. The
reasons which justified its recognition quarter of a century
D
E
F
G
H
A
B
c
D
E
F
G
H
400
SUPREME COURT REPORTS
[1986] 1 s.c.R.
ago, namely, the preservation of the integrity of rural
society, the unity of family life and the agnatic theory of )-
'
succession are today irrelevant, It is difficult to uphold the
classification on the basis of unity and integrity of either
the village co-111ity or the family or on the basis of the
agnatic theory of succession which is again in a way connected
with the integrity of the family. The list of kinsfolk
mentioned
as
entitled
to
pre-emption
i~ intrinsically
defective and self-contradictory. There is, therefore, no
reasonable classification and clauses 'First', 'Secondly'
and /
'Thirdly' of s. 15(l)(a), 'First', 'Secondly', and 'Thirdly'
·•
of s. 15(l)(b), clauses 'First', 'Secondly' and 'Thirdly' of
s. 15(l)(c) and the whole of section 15(2) are, therefore,
declared ultravires the Constitution. (419 E-H]
1.2 Clause 'fourthly' of s. 15(l)(a), clauses
'fourthly
and fifthly' of s. 15(l)(b) and clause 'fourthly' o.f s. 15(1)~
(c) are valid and do not 'infringe either Art. 14 or 15 of the
Constitution. [416 H; 417 A]
2.1 Whether it is the Constitution that is expounded or
the constitutional validity of a statute.that is considered, a r
cardinal rule is to look to the Preamble to the Constitution
as the guiding light and to the Directive Pri~ciples of State
Policy as the Book of interpretation. The Preamble embodies
and expresses the hopes and aspirations of the people. The
Directive Principles set out proximate goals. At the time of
examining statutes against the Constitution, it is through
these glasses that the court must look,
'distant vision' or
'near vision'.
The Constitution being sui-generis, where
constitutional
issues
are
under
consideration,
narrow
interpretative rules which may have relevance when legislative
enactments are interpreted may be misplaced. (411 D-F]
2,2 In 1977 the 42nd amendment
proclaimed India as a
Socialist Republic. The word 'socialist' was introduced into
the Preamble to the Constitution. The implication of the
introduction of the word 'socialist' which has now become the
centre of the hopes and aspirations of the people - a beacon
to guide and inspire all that is enshrined in the articles of
the Constitution - is clearly to set up a "vibrant throbbing
socialist welfare society" in the place of a "Feudal exploited ,
soc

## Text

_Characters 0–39,599 of 44,924. This is a partial read: ask again with offset=39599 for what follows._

v.
STATE OF BARYANA & ORS.
FEBRUARY 27, 1986
[P.N. BHAGWATI, C.J., 0. CHINNAPPA REDDY, R.B. MISRA,
V. KHALID AND G.L. OZA, JJ.]
399
Punjab.Pre-emption Act 1913, as applicable in the State
of Haryana, s. 15 - Whether constitutionally void.
A
B
Interpretation of statutes - Provision of Conatitution
C
· sought to be interpreted or a statute whose constitutional
validity is sought to be questioned - Interpretation that will
promote march & Progress towards -a Socialistic Democratic
State - To be given.
Section 15 of ·the Punjab Pre-emption Act,
1913 as
applicable in the State of Haryana, incorporates the right of
pre-emption based on conaanguinity. The petitioners challenged
this right of pre-emption based on consanguinity under Art.32
of the Conatitution on the ground that it offends Arts. 14 and
15 of the Conatitution. It was contended on behalf of the
respondent-State that the classification in f awur of the
persona mentioned in section 15 has been made on reasonable
basis . in the interests of the public: (i) to preserve integrity of village comamity; (ii) to avoid fragmentation of
holdings; (iii) to implement the agnatic theory of succession;
• (iv) to promote public and private decency; (v) to facilitate
tenants to acquire ownership rights; (vi) to reduce litigation
consequent to introduction of an outsider on family property
or jointly owned property.
Allowing the writ petitions,
llKID;
l(i)
There
is
no
justification
for
the
classification contained
in section
15
of
the
Punjab
Pre-emption Act of the kinafolk entitled to pre-emption •. The
,
right of pre-emption based on conaanguinity is a relic of the
) •.feudal psst. It is totally inconsistent with modern ideas. The
reasons which justified its recognition quarter of a century
D
E
F
G
H
A
B
c
D
E
F
G
H
400
SUPREME COURT REPORTS
[1986] 1 s.c.R.
ago, namely, the preservation of the integrity of rural
society, the unity of family life and the agnatic theory of )-
'
succession are today irrelevant, It is difficult to uphold the
classification on the basis of unity and integrity of either
the village co-111ity or the family or on the basis of the
agnatic theory of succession which is again in a way connected
with the integrity of the family. The list of kinsfolk
mentioned
as
entitled
to
pre-emption
i~ intrinsically
defective and self-contradictory. There is, therefore, no
reasonable classification and clauses 'First', 'Secondly'
and /
'Thirdly' of s. 15(l)(a), 'First', 'Secondly', and 'Thirdly'
·•
of s. 15(l)(b), clauses 'First', 'Secondly' and 'Thirdly' of
s. 15(l)(c) and the whole of section 15(2) are, therefore,
declared ultravires the Constitution. (419 E-H]
1.2 Clause 'fourthly' of s. 15(l)(a), clauses
'fourthly
and fifthly' of s. 15(l)(b) and clause 'fourthly' o.f s. 15(1)~
(c) are valid and do not 'infringe either Art. 14 or 15 of the
Constitution. [416 H; 417 A]
2.1 Whether it is the Constitution that is expounded or
the constitutional validity of a statute.that is considered, a r
cardinal rule is to look to the Preamble to the Constitution
as the guiding light and to the Directive Pri~ciples of State
Policy as the Book of interpretation. The Preamble embodies
and expresses the hopes and aspirations of the people. The
Directive Principles set out proximate goals. At the time of
examining statutes against the Constitution, it is through
these glasses that the court must look,
'distant vision' or
'near vision'.
The Constitution being sui-generis, where
constitutional
issues
are
under
consideration,
narrow
interpretative rules which may have relevance when legislative
enactments are interpreted may be misplaced. (411 D-F]
2,2 In 1977 the 42nd amendment
proclaimed India as a
Socialist Republic. The word 'socialist' was introduced into
the Preamble to the Constitution. The implication of the
introduction of the word 'socialist' which has now become the
centre of the hopes and aspirations of the people - a beacon
to guide and inspire all that is enshrined in the articles of
the Constitution - is clearly to set up a "vibrant throbbing
socialist welfare society" in the place of a "Feudal exploited ,
society". When the Court considers the question whether irt
ATAM PRAKASH v. STATE
401
statute offends Article 14 of the Constitution it must
consider whether a classification that the 'legislature may
have made is consistent with the socialist goals set out in
the Preamble and the .Directive Principles enumerated in Part
IV of the Constitution. A classification which is not in tune
with the Constitution is per se unreasonable and cannot be
permitted. [411 G-H; 412 A-C]
3.1 The right of pre-emption based on consanguinity is
antiquated and feudal in origin and in character. The right is
very 11111ch like another right of feUdal origin and character
which subsisted here and there in India until recently,
particularly S100ngst the princely families, namely, the right
of succession by
primgeniture.
It
is
a
well -known
characteristic of feudalism that the control of the mat
important productive resource, land, should continue in the
hands of the same social and family group. The right of preemption 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 11111St go. [404 G-H; 405 A-Bl
3.2 Avoidance of fragmentation of holdings, promtion of
private and public decency and reduction of litigation do not
seem to have any relevance to the right of pre-emption, vested
in the kinsfolk of the vendor. The real question is whether a
t. classification in favour of kinsfolk of the vendor can be
considered reasonable so as to justtfy a right of pre-emption
in their favour for the purpose of preserving the integrity of
, the village co11111Unity or implementing the agnatic theory of
succession or preserving the unity and integrity of the
·'t'
family. The classification cannot be considered reasonable in
the circumstances prevailing today whatever justification
there might have been for the classification in 1960 when the
legislature amended s. 15 of the Punjab Pre-emption ACt. A
scrutiny of the list of persons in whose favour the right of
pre-emption is vested under s •. 15 reveals certain glaring
facts which appear to detract from the theory of preservation
of the integrity of the family and the theory of agnatic right
of succession. Neither the father nor the mther figures in
\~ the list though the father's brother does. The son's daughter
and the daughter's son do. The sister and sister's son are
A
B
C·
D
E
F
G
H
A
402
SUPREME COURT REPORTS
[19861 1 s.c.R.
excluded though the brother and the brother's son are includ-
-~
ed. Thus relatives of the same degree are excluded either
because they are women or because they are related through
women. It is not as if wonien and those related through women
are altogether excluded because the daughter and daughter's
son are included. If the d<1ugll~er is to be treated on a par
B .
with
the son's son it does not appear logical why the
father's son (brother) should be included and not the father's
daughter (sister). These are but a few of the intrinsic
contradictions that appear in the list of relatives· mentioned !'11
in s.15 aa entitled to the right of pre-emption. [417 G-11;
c
D
E
F
G
H
418 A-B; H; 419 A-CJ
3. 3 There has been a green and a white revolution in
Haryana. This State is also in the process of an industrial
revolution. Industries have sprung up through out the State
and the population has been in a state of constant flux and
movement. The traditional integrity of the village and the
family have now become old wives' tales. Tribal loyalties have
disappeared and family ties have weakened. Such is the effect
of
the
march
of
history
and
the
consequence
of r
industrialisation, mechanisation of agriculture, development
of marketing and trade, allurement of professions and office,
employment opportunity else-where and so on. The processes of
history cannot be reversed and the court cannot hark back to
the traditional rural-family-oriented society.
~ite apart
from the break up of the integrity of village life and family
life, it is to be noticed that the property in respect of ~
which the right of. pre-emption is to be exercised is property
of which the vendor or the vendors, as the caae may be, have
rights of full ownership and their kinsfolk have no present
right whatsoever. [418 C-F]
3.4 The right of pre-emption is not to be confused with
the right to question the alienation of ancestral i1J1110vable
property which the nale lineal descendants of the vendor have
under the Punjab Custom (Power to Contest) Act 1920. The right
of
pre-emption is now entirely a
statutory right
and
diHociated from custom or personal law. !418 G]
'f
4,1 In Bb8ll llaa v. B, Baijnath SiDgh 1962 (Suppl.)
3
S,C,R, 724, the right of pre-emption given to co-shares waa ,, .•
held to be a ·reasonable restriction on the right to hold,
'
acquire or dispose of property conferred by Art. 19(l)(f) of
--
•
ATAM PRAKASH v. STATE
403
the Constitution. What has been said there to uphold the right
of pre-emption granted to a co-sharer as a reasonable restriction on the right to property applies with the same force to
justify the classification of co-sharers as a class by themselves for the purpose of vesting in them the right of
pre-emption. [416 D-El
4,2 The right of pre-emption vested in a tenant can also
be easily sustained. There can be no denying that the movement
of all land reform legislation has been towards enabling the
tiller of the soil to obtain proprietary right in the soil so
that he may not be disturbed from possession of the land and
deprived of his livelihood by a superior proprietor. The right
of pre-emption in favour of a tenant granted by the Act is
only another instance of a legislation aimed at protecting the
tenant. There can be no doubt that tenants form a distinct
class by themselves and the right of pre-emption granted in
their favour is reasonable and in the public interest.
[416 G-H]
Jibau Ran v. B. Baijnath S:lngh, [19621 Supp. 3 s.c.R. 724
and Sant Ram v. Lahb S:lngh A.1.R. 1965 s.c. 314 referred to.
Ran Sarup v. Hanshi •
Ors.
[19631
3 s.c.R. 858
explained.
ORIGINAL JURISDICTION: Writ Petition (Civil) No. 13227
of 1984 etc.
(Under Article 32 of the Constitution of India.)
Pankaj Kalra for the Petitioner in W.P .• No. 13227 of
"'
1984.
M/s. llarbans Lal, V.C. Mahajan, M,habir Singh,Avadh
Behar! Rohtagi, S.S. Banerjee, .M.S. Gujaral, K.G. Bhagat,·
Hardev Singh, Yog'.::shwar Prasad, Anil Dev Singh, Govind Das,
and
K.P.
Bhandari,
M/s.
S.M.
Ashri,
G.K.
Bansal, J.S.
Malhotra, Ali Ahmed, Jayashree Ahmed; C.K. Bansal, Narendra
Singh Malik, D.K. Garg, B.P. Maheshwari, Vidya Sagar Vashist,
S.N. Agarwal, S.K. Jain, S,K, Dhingra, M.L. Verma, S.K. Bagga,
'~Ranbir Singh Yadav, H.M. Singh, Kirpal Singh, Amlan Ghosh, M.
Qamaruddin, Mrs. M. Qamaruddin, R.K. Kapur, M.M. Kashyap, B.R.
Kapur, Anil Katya!, O.P. Sharma, Amis Ahmad Khan, R.C. Kapoor,
Mrs. Laxmi Arvind, Suresh c. Gupta, S.S. Ray, An.il Bhatnagar,
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
II
404
SUPREME COURT REPORTS
[1986] 1 S.C.R.
Praveen Kumar, Ashok Mathur, M.K. Dua, P.N. Puri, Gyan Singh,
~
I.S. Goel, S.N. Singh, C.V. Subba Rao, V.M. Issar, Khai~an &
Co., Brij Bhushan Sharma, P.
Narasimhan,
Ms.
Madhu M:>ol
Chandani, K.K. Jain, Pramod Dayal, A.D. Sangar, A.K. Ganguli,
A. Mariaputam, Nafiz Ahmad Siddiqui, M.C. Dhingra, Avtar Singh
'
Sonal, Shreepal Singh, S.R. Srivastava, Ashok K.
Srivastava,
Balrukand Goel, S.K. Bhulakia, R.C. Bhatia, R.K. Agnihotri,
Dr. Meera Aggarwal, R.C. Misra, M.S. Dhillon, S.K. Ilholakia,
P. Narasimhan, R.K. Agarwal, T. Sridharan, S.C. Patel, N.M.
Popli, Brij Bhushan and Kailash Mehta for the appearing "'
parties.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. 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 sec. 15 of the Punjab Pre-emption
Act,
1913 was applicable in the State of Haryana which
incorporates this right is challanged. The State of origin of
the Punjab Pre-emption Act, the State of Punjab, has repealed r
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 sec.lS(l)(a) of the Act was questioned
in this Court.in Baa Sarup v. Munshi and Ors. [1963]
3 S.C.R.
858 on the ground that it offended
the
fundamental right
guaranteed by sec.19(l)(f) of the Constitution. It was ruled
by a Constitution Bench that there was no infringement of
Art.19(l)(f) and that the provision was valid. The validity of
sec.IS is now impugned primarily on the ground that it offends
Arts. 14 and 15 of the Constitution.
The right of pre-emption based on consanguinity has been
~
variously
described
by
learned
judges
as
'feudal',
'piratical', 'tribal', 'weak', 'easily defeated', etc. [Kalwa
v. Vasakha Singh A.I.R. 1983 Punjab & Haryana 480 (F.B.) at
490 and Bishan Singh v. Khazan Singh [1959]
S.C.R.
878.]
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 princel:t--f
families, namely, the right of succession by primogeniture. It
-
•
ATAM PRAKASH v. STATE [CHINNAPPA REDDY, J.]
405
----( is a
well-known characteristic of feudalism that the control
of
the most
important
productive resource,
land,
should
contitiue 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-Sec'ond
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, soc.ialist, 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 through out 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 FortyFourth
Amendment. Tiie 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(l)(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.
•
'I'
The Punjab Pre-emption Act, 1913 repealed the Punjab
Pre-emption Act of 1905. and sec.12 of the 1905 Act which
corresponded to sec.15 of the 1913 Act was as follows:-
A
B
c
D
E
F
"12. Subject to the provisions of section 11, the
G
right - of pre-emption in respect of agricultural
land and village immovable property shall vest-
(a) in the case of the sale of such · land or
property by a sole owner or occupancy tenant, or
when such land or property is held jointly, by the
co---sharers,
H
A
B
c
D
E
F
H
406
SUPREME COURT REPOUS
(19861 l s.c.a.
in the persons who but for such sale liOUld be
,___
entitled to inherit the property in the event of
his or their decease, in order of succession; ·
(b) in the case of a sale of share of such land or
property held jointlyfirst in the lineal descendants of the vendor 1n
the male line in order of succession; secondly, in
the co-shares, if any, who are agnates, in order of , ..
succession;
thirdly, in the persons described in sub-clause (a)
of this sub1ect1on and not hereinbefore provided
for;
fourthly, in the co-sharers, (i) jointly, (ii)
severally;
. .
(c) As section lS(c), Act of 1913, with the
addition of words (i) jointly, (ii) severally, in ,..
secondly, thirdly and fourthly.
,_..,
Explanation 1. - In the case of sale of a right of
occupancy,
clauses
(a),
(b) and
(c) of this
sub1ection, with the exception of sub-clause
fourthly of clause (c), shall be applicable.
Explanation 2. - In the case of a sale by a female
of property to which she has succeeded through her
husband, son, brother or father, the word 'agnates'
in this section shall mean the agnates of the'
person through whom she has so succeeded."
"f
Section 15 of the Punjab Pre-.,mption Act,
1913 as it
originally stood, was as follows:-
"15. Subject to the provisions of section 14 the
right of pre-emption in respect of agricultural
land and village immovable property shall vest -
(a) where the sale is by a sole owner or occupancy+
tenant or, in the case of land or property jointly
•
j
ATAM PRAKASH v. STATE [ CHINNAPPA REDDY,. J, ]
407
owned or held, is by all the co-sharers jointly, in
the persons in order of succession, who but for
such sale would be entitled, on the death of the
vendor.or vendors, to inherit the land or property
sold:
(b) where the .sale is of a share out of joint land
or property, and is; not made by all the co-sharers
jointly, -
firstly, in the lineal decendants .of the vendor in
order of succession;
secondly, in the co-share rs , if any,
who
are
agnates, in order of succession;
thirdly in the persons, not included under firstly
or secondly, above, in order of succession, who but
for such sale would be entitled, on the death of
the vendor, to inherit the land or property sold;
fourthly, in the co-sharers:
(c) If no person having a right of pre-emption
under clause (a) or clause (b) seeks to exercise
it. -
firstly, when the sale affects the superior or
inferior proprietary right and the superior right
is sold, in the inferior proprietors, and when the
inferior proprietors, and when the inferior right
is sale, in the superior proprietors;
secondly, in the owners of the patti or other
sub-division of the estate within the limits of
which such land or property is situate;
thirdly, in the owners of the estate;
fourthly, in the case of a sale of the proprietary
right in such land or property, in the tenants (if
any) having rights of occupancy in such land or
property;
A
B
c
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E
F
G
H
408
A
SUPREME COURT REPORTS
[1986] 1 S.C,R.
fifthly, in any tenant having a right of occupancy
~
in any agricultural land in the estate within the
limits of which the land or property is situated.
Explanation -
In the case of sale by a female of
land or property to which she has succeeded on a
B
life tenure through her husband, son, brother or
father, the word (agnates' in this section shall
mean the agnates of the person through whom she has
so succeeded."
-"'
"'
In 1960, there were substantial amendments to the Punjab
c
Pre-emption Act and, after amendment, sec.15 was as follows:-
"15. Persons in whom right of pre-emption vests in
respect of sales of agricultural land and village
immovable property -
(1) The right of pre-empt ion
in respect of agricultural land and village immovD
able property shall vest -
E
F
G
H
(a) where the sale is by a sole owner - First, in 'r
the son or daughter or son's son or daughter's son
of the vendor;
Secondly, in the brother or brother's son of the
vendor;
Thirdly,
in the father's brother or father's
brother's son of the vendor;
Forthly, in the tenant who holds under tenancy of ,
the vendor the land or property sold or a part
thereof;
(b) where the sale is of a share out of joint land
or property and is not made by all the co-shares
jointlyFirst, in the sons or daughters
or sons' son or
daughters' sons of the vendor or vendors;
Secondly, in the brothers or brother's sons of the-·4
vendor or vendors;
-i
/
ATAM PRAKASH v. STATE [ CHINNAPPA REDDY, J. ]
409
Thirdly,
in the father's brother or father's
brother's sons of the vendor or vendors;
Fourthly, in the other co-sharers;
Fifthly, in the tenants who hold under tenancy of
the vendor or vendors the land or property sold or
a part thereof;
(c) where the sale is of land or property owned
jointly and is made by all the co-sharers jointlyFirst, in the sons or daughters or sons' sons or
daughter's sons of the vendors;
Secondly, in the brothers or brother's sons of the
vendors;
Thirdly, in the Father's or brother's or father's
brother's sons of the vendors;
Fourthly, in the tenants, who hold under tenancy of
the vendors or any one of them the land or .property
sold or a part thereof.
(2) Notwithstanding
anything contained fo subsection (1) : -
(a) where the sale is by a female of land or
property to which she has succeeded through her
father or brother or the sale in respect of such
land or property is by the son or daughter of such
female after inheritance, the right of pre-emption
shall vest:-
(i) if the sale is by such femN.e, in her brother
or brother's son;
(ii) if the sale is by the son or da(lghter of such
female, in the mother's brothers or the mother's
brother's sons of the vendor or vendors;
(b) where the sale is by a female of land or
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[i986] 1 S.C.R.
property to which she has succeeded through her
r'-
husband, or through her son in case the son has
inherited the land or property sold from his
father, the right of pre-emption shall vest,-
FIRST, in the son or daughter of such (husband of
the) female;
SECONDLY, in the husband's brother or husband's
brother's son of such female."
/'
Agricultural land has been defined in the Act to mean
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land as defined in the Punjab Alienation of Land Act, not
including the rights of a mortgagee, whether usufructuary or
not, in such land.
'Member of an agricultural tribe' and
'Group of agricultural tribes' are to have the same meanings
assigned to them respectively under the Punjab Alienation of
Land Act. The Punjab Alienation of Land Act has been repealed,
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but the definitions continue to have force for the purposes of
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the Punjab Pre-emption
Act.
Section 4 of the Punjab Preemption Act states what the right of Pre-emption is. It says :
r
"4. Right of pre-emption application of - The right
of pre-emption shall mean the right of a person to
acquire agricultural land or village immovable
property or urban immovable property in preference
to other persons, and it arises in respect of such
land only in the case of sales and in respect of
such property only in the case of sales or of
foreclosures of the right to redeem such property.
Nothing in this section shall prevent a Court from
holding that an alienation purporting to be other
than a sale is in effect a sale."
Section 5(b) prescribes that there shall be no right of
pre-emption in respect of the sale of agricultural land being
waste land reclaimed by the vendee. Section 6 provides that a
right of pre-emption shall exist in respect of village
immovable property and subject to the provisions of section
5(b}, in respect of agricultural land, but only subject to all
the provisions and limitations contained in the Act. Section 7
refers' to the right of pre-emption in respect of urban
immovable property. Section 8 enables the Government to
' '
ATAM PRAKASH v. STATE [CHINNAPPA REDDY, J,)
411
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pre-emption in any local area or with respect to any land or
property or class of land or property or with respect to any
sale or class of sales. Section 10 prevents a patt;y to a sale
along with other joint owners from claiming a right to
pre-emption. In respect of land sold by a member of an
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agricultural tribe, section 14 provides that no person who is
not a member of the same agricultural "tribe as the vendor
shall have a right of pre-emption. We have already extracted
', section 15. Section 16 refers to the vesting of the right of
pre-emption in the case of an urban imnovable property,
Section 17 prescribes how the right of . pre-emption nay be
exereised where several persons are entitled to such right. c
Other provisions deal with the procedure· to be followed for
· the exercise of the right of pre-emption.
Now, to the question at issue and first, a word about
interpretation. Whether it is the Constitution that is expounded or the constitutional validity of a sfatute that is
D
considered, a cardinal rule is to look to the Preamble to the
-...
Constitution as the guiding light and to the Directive Principles of State Policy as the Book of Interpretation. The
Preamble embodies and expresses the hopes and ~pirations of
the people. The Directive Principles set out proximate goals.
When we go about the task of examining statutes against the
E
Constitution, it is through these glasses that we must look,
'distant vision' or 'near vision'. The Constitution being
sui-generis, where Constitutional issues are under consideration, narrow iilterpretative rules which may have relevance
when legislative enactments are interpreted msy be misplaced.
1 Originally the Preamble to the Constitution proclaimed the· F
resolution of the people of India to constitute India into 'a
~
Sovereign Democratic
Republic'
and
set forth
'Justice,
Liberty, Equality and Fraternity', the very rights mentioned
in the French Declarations of the Rights of Man as our hopes
and aspirations. That was in 1950 when we had just emerged
from the colonial-feudal rule. Time passed. The people's hopes
G
and aspirations grew. In 1977 the 42nd amendment proclaimed
India as a Socialist Republic. The word 'socialist' was introduced into the Preamble to the Constitution. The implication
of the introduction of the word 'socialist', which has
now
f , become the centre of the hopes and aspirations of the people - ·
a beacon to guide and inspire all that is enshrined in the H
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SUPREME COURT REPORTS
(1986] 1 S.C.R.
articles of the Constitution -, is clearly to set up a
t--
"vibrant throbbing socialist welfare society" in the place of
a "Feudal exploited society". Whatever article of the Constitution it is that we seek to interpret, whatever statute it is
whose constitutional validity is sought to be questioned, we
must strive to give such an interpretation as will promote the
march and progress towards a Socialistic Democratic State. For
example,
when we
consider the question whether a statute
offends Article 14 of the Constitution we must also consider
whether a classification that the legislature may have made is r'
consistent with the socialist goals set out in the Preamble
and the Directive Principles enumerated in Part IV of the
Constitution. A classification which is not in tune with the
Constitution is per se · unreasonable and cannot be permitted.
With these general ennunciations we may
now examine the
questions raised in these writ petitions.
We may first refer to two decisions of this court where
the court had occasion to consider the question of the constitutional validity of the right of pre-emption incorporated in
the .Rewa State Pre-emption Act and the Punjab Pre-emption Act
~
in relation to Art. 19(l)(f) of the Constitution.
In Bhau Ram v. B. Baijnath Singh [1962]
Suppl. 3 S.C.R.
724, a Constitution Bench of this court had occasion to consider the question whether a provision of the
Rewa State Preemption Act which gave a right of pre-emption based on
vicinage and the provisions of the Punjab Pre-emption Act,
1913 which gave a right of pre-emption to co-sharers offended
Art.19(l)(f) of the Constitution. It was held that a right of
pre-emption by vicinage offended Art.19(l)(f) and that a right ,
of pre-emption in favour of co-sharers did not. While dealing
with the provision of the Rewa Act relating to pre-emption by
~
vicinage, the Constitution Bench not only held that the right
to pre-emption by vicinage offended Art. 19(1)(£), but also
appeared to indicate that the right might also offend the
fundamental right guaranteed by Art.IS. Wanchoo, J., speaking
for the court said
11Before the Con:stitution came
into force,
the
statutes if they were
passed
by
competent
authority, could not be challenged; but we have now_ 1
to judge the reason ableness of these statutes in
t
ATAM PRAKASH v. STATE [CHINNAPPA REDDY, J.]
413
the light of the fundamental rights guaranteed to
the citizens of this country by the Constitution.
In a society where certain classes were privileged
and preferred to live in groups and there were
discriminations, on grounds of religion, race and
caste, there may have been some utility in allowing
persons
to
prevent
a
stranger
from
acquiring
property in an area which had been populated by a
particular fraternity of class of people and in
those times a right of pre-emption which would oust
a stranger from the neighbourhood may have been
tolerable or reasonable. But the constitution now
prohibits discrimination against any citizen on
grounds only of religion, race, caste, sex, place
of birth or any
of
them under
Art.
15
and
guarantees a right to every citizen to acquire,
hold and dispose of property, subject only to
restrictions which may be reasonable and in the
interests of the general public. Though therefore
the ostensible
rMson for pre-emption may
be
vicinage, the real
r~ason behind the law was to
prevent a stranger from acquiring property in any
area which had been populated by a particular
fraternity
or
class
of
people.
In
effect,
therefore, the law of pre-emption based on vicinage
was really meant to prevent strangers i.e. people
belonging to different religion, race or caste,
from acquiring property. Such division of society
now into groups and exclusion of strangers from any
locality cannot be considered reasonable, and the
main reason therefore which sustained the law of
pre-emption based on vicinage in previous times can
have no force now and the law must be held to
impose an unreasonable restriction on the right to
acquire, hold and dispose ·of property as now
guranteed under Art.19(l)(f), for it is impossible
to see such restrictions as reasonable and in the
foterests of the general public in the state of
society in the present day."
Considering the question relating to the right of pre-emption
given to co'-sharers in the Punjab Pre-emption Act, 1913, the
court observed :
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"The question as to the constitutionality of a law·
of pre-emption in favour of a co-sharer has been
considered by a number of High Courts and the
constitutionality has
been' uniformly upheld. We
have no doubt that a law giving such a right
imposes a reasonable restriction which is in the
interest of the general public. If an outsider is
introduced is a co-sharer in a property it will
make
common
management
extremely difficult and
destroy the benefits of ownership in common. The
result of the law of pre-emption in favour of a
co-sharer is that if sales take place the property
may eventually come into the hands of one co-sharer
as full owner and that would naturally be a great
advantage the advantage is all the greater in the
case of a residential house and s.16 is concerned
with urban property; for the introduction of an
outsider in a residential house would lead to all
kinds of complications. The advantages arising from
such a law of pre-emption are clear and in our
opinion outweight
the
disadvantages
which the
vendor may suffer on account of his inability to
sell the property to
whomsoeve~ he pleases. The
vendee also cannot be said to suffer llllch by such a
law because he is merely deprived of the right of
owning an undivided share of the property. On the
whole it seems to us that a right of pre-emption
based on co-sharership is a reasonable restriction
on the right to acquire, hold and dispose of
property and is in the interests of the general
public."
In Bhau Ram's case, there was also a question relating to the
right of pre-emption granted by s.174 of the Berar Land
Revenue Code in favour of occupants in a survey number in
respect of transfers of interests in that survey number.
Refer.ring to the provisions of the Berar Land Revenue Code, it
was held that the law of pre-emption in s,174 applied to those
who were co-sharers or akin to co-sharers and was not an
unreasonable
restriction
on
the
right
guaranteed
by
Art .19(1 )(f).
The question whether section lS(l)(a) of the Punjab
I
} '·
ATAM PRAKASH v. STATE [CHlNNAPPA REDDY, J,]
415
Pre-emption Act, 1913 (as amended in 1960) which granted a
right of pre-emption in respect of agricultural land and
village immovable property (where the sale was by
a sole
owner) to the son or daughter or son's son or daughter's son
of the vendor, offended the fundamental ·right guaranteed by
Art.19(l)(f)
of
the
Constitution
was
considered
by
a
Constitution Bench of the court in Ram Sarup v. Munshi and
Ors. (supra). Before the Constitution Bench, the following
five grounds were relied upon to vindicate the reasonableness
of sections 15 and 16 of the Act ·:
(i) to preserve theo integrity of the village and
the village community;
·
(ii) to avoid fragmentation of holdings;
(iii) to implement the agnatic theory of the law of
succession;
(iv) to reduce the chances ·of litigation and
friction and to promote public order and domestic
confort; and
(v) to· promote private and public decency and
convenience.
It was held that the ground of "promotion of public order and
domestic
collifort"
and
"private
and
public decency
and
convenience" had relevance to urban immovable property which
was dealt with in s.16 and not to agricultural .property which
was dealt with in s.15. It also held that the ground of
avoidance of chances of litigation had no relevance and
further that the ground of avoidance of fragmentation of
holdings was of no assistance to suatain the claim of a son to
pre-empt in the event of a sale by a
sole owner-,-father as
that criterion was of real relevance in the case of the right
of pre-emption given to co-sharers and the like. In regard to
the ground relating to preservation of the integrity of the
village and the village community, the court held that it was
not a final and concluaive answer to the argument against the
reasonableness of the provision. The court however upheld
s. lS(l)(a) as a reasonable restriction in the interest of the
general public on the basis of the third ground which was that
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SUPREME COURT REPORTS
[1986] 1 s.c.R.
the next in succession should have the chance of retaining the
,__
property in the family. It was observed that the son and other
members of the family though not entitled to a present
interest in the property or a right to prevent the alienation,
would nevertheless have a legitimate expectation founded on
and proroted by the consciousness of the collDlllnity, It was
observed that if the social consciousness did engender such
feelings, and taking into account the very strong sentimental
value that was attached to the continued possession of family
property in the Punjab, it could not be said that the restricI
tion on the right of free alienation imposed by s.15(1 ){a)
limited as it was to a small •class of near relations of the
vendor was either unreasonable or not in the interest of the
general public.
In Sant llam v. Labh Singh, A.I.R. 1965 S.C, 314, it was
held that the reasons given by the court in Bhau Ram's case to
invalidate the right of pre-emption based on vicinage held
good to invalidate such a custom also.
In the first case, (Bhau Ram's case), the right of preemption given to co-sharers was held to be a reasonable
restriction on the right to held, acquire or dispose of
property conferred by Art. 19(l)(f) of the Constitution. What
has been said there to uphold the right of pre-emption granted
to a co-sharer as a reasonable restriction on the right to
property applies with the same force to justify the classif ication of co-sharers as a class by themselves for the purpose
of vesting in them the right of pre-emption. We do not think
that it is necessary to re-state what has been said in that
case. We endorse the views expressed therein. The right of
pre-emption vested in a tenant can also be easily sustained.
There can be no denying that the movement of all land reform
legislations has been towards enabling the tiller of the soil
to obtain proprietary right in the soil so that he may not be
disturbed from possession of the land and deprived of his
livelihood by a superior proprietor. The right of pre-emption
in favour of a tenant granted by the Act is only another instance of a legislation aimed at protecting the tenant. There
can be no doubt that tenants form a distinct class by themselves and the right of pre-emption granted in their favour is
reasonable and in the public interest.
We are, therefore, of
the view that clause 'fourthly' of s.15(l)(a), clauses 'four- ·i
I
ATAM PRAKASH v. STATE [CHINNAPPA REDDY, J.]
417
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thly and fifthly' of s.15(1)(b) and clause 'fourthly' of
s.15(1)(c) are valid and do not infringe either Art. 14 or 15
of the Constitution.
I -
We now come to the primary question whether the right of
pre-emption based on consanguinity and contained in the
B
remaining clauses of sec.15(1)(a},
(b)
and (c}
and sec.
15(2}(a} and (b) can be sustained. Earlier we have briefly
indicated the character of the right of pre-emption based on
\
consaguinity. In the counter affidavit, the classification in
favour of the persons mentioned in s.15 is sought to be
justified in the following manner :-
"The classifications has been made on reasonable
basis in the interests of the public :-
(i) to preserve in:egrity of village colDllllllity;
(ii) to avoid fragmentation of holdings;
(Hi)
to
implement
the
agnatic
theory
of
succession;
(iv) to promote public snd private decency;
(v) to facilitate tenants to acquire ownership
rights;
(vi)
to
reduce
litigation
consequent
to
introduction of an outsider on family property or
jointly owned property.
~
These were the very factors which were put forward to support
the plea in Ram Sarup's case that s.15(1)(a) was a reasonable
restriction on the right to hold acquire or dispose of
property ~onferred by Art. 19(1)(f) of the Constitution. As
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pointed out in Ram Sarup•s case, avoidanc~ of fragmentation of
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holdings,
promotion of
private
and
public decency
snd
reduction of litigation do not seem to have any relevance to
the right of pre-emption, vested in the kinsfolk of the
vendor. The real question is whether a classifkation in
t~ favour of the kinsfolk of the vendor can be considered
reasonable so as to justify a right of pre-emption in their
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SUPREME COURT REPORTS
[1986] 1 s.c.R.
favour for the purpose of preserving the integrity of . the
~-·
village community or implementing the agnatic theory of
succession or preserving the unity and integrity of the
family, We do not think that the classification can be considered reasonable in the circumstances prevailing today whatever justification there might have been for the classif ication in 1960 when the legislature amended s.15 of the Punjab
Pre-emption Act.