# Bochliit14r Sfogh v. Tru Stak of Punjab - **Citation:** [1962] Supp. 3 S.C.R. 724 - **Court:** Supreme Court of India - **Decided:** 1962 - **Case number:** Civil Appeal No. 270 of 1955 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bochliit14r-sfogh-v-tru-stak-of-punjab-2490 - **Pages:** 45 ## Headnote 1962 Bochliit14r Sfogh v. Tru Stak of Punjab .M udholkat J. 1962 March 7. 724 SUPREME COURT REPORTs [l96ZJ SUPP. would then be the action of the Government. Horo one of the Under Secretaries to the Government of Punjab informed the appellant by his letter dated !\fay, 1, 1957 that his representation '•had been considered 1tnd rejected", evidently by the State Government. Thh; would show that appropriate action had been taken under the relevant rule. Tho appeal is thus without substance and is dismissed. In view of the fact that the appellant is a displaced person with heavy responsibilities and with limited or possibly hardly any means we diroct that the costs shall be borntl by the parties concerned. BHAURAY v. B. BAIJNATH SINGH (P. B. GAJB!'!DltAGADKAR, A. K. SARKAR, K. N. WANCHOO, K. C. DAS GUP'l'A and N. RAJA· GOl'ALA AYYANGAR, JJ.) Pre-eniption-Stalt1tes entitling neighbours, co-sharera et.c. to pre-empt-C . the vendor will exclude the more remote. There were prov1s1ons in the Act for giving notice of an intended sale . to .persons having a right of pre.emption, for the loss of die ~1ght of pie-emption in case no action \vas taken on the notice and for fixation of a fair price by the Courl. It was contended 38.C.R. SUPREME COURT REPORTS 725 thats. IO offended Art. 19(1)(f) of the Constitution and was 1161 void. Section 16 of the Punjab Pre•emption Act, 1913, as applied to Delhi, provided for pre-emption on six grounds, the first, third, fourth and sixth grounds being in favour of co. sharers, owners of common staircases, owners of common entrance from a street and owners of contiguous property. By s. 7 the operation of the Act was limited to localities where the custom of pre-emption was prevalent. There were provisions in the Act for giving of notice etc. as in lhe Rewa Act. Section 5 exempted agricultural property, shops, serai, katra, dhar~msala, moaque and other similar building from the purview of the Act. It was contended that s. 16 offended Art. 19(1)(f) and that the Act contravened Art. 14. Chapter 14 of the Berar Land Revenue Code, 1928, created a right of pre-emption in the holder of an interest in a survey-number when any person having an interest in any land in that survey-number sold it to a stranger provided that the interest sold was in unalienated land held for agricultural purposes. It was contended that this law of pre-emption was inconsistent with Art. 19(I)(f). ..-,z Held, (per Gajendragadkar, Wanchoo and Ayyangar,JJ., Sarkar and Das Gupta,JJ., Contra) that s. IO of the Rewa Act which provided for pre-emption on the ground of vicinage imposed unreasonable restrictions on the right to acquire, hold or dispose of property guaranteed by Art.19(1) (f) of the Constitution and was void. It placed restrictions on the right of the vendor to sell his property to a purcha~er of his choice at a price settled between them ; it exposed the purchaser to litigation even after the requisite notices had been given by the vendor. There was no advantage to the general public from such a law. The real reason behind a Jaw of pre· emption on the basis of vicinage was to prevent strangers i.e. people belonging to different religion, race or caste, from , acquiring property in any area populated by a particular fraternity or class of people. This could not be considered reasonable in view of the prohibition under Art. 15 of the C0nstitution of discrimination only on grounds of religion, race, caste, etc. Shri Audh Behari Singh v. Gajadltar Jaipuria, (1955) ## Text _Characters 0–39,881 of 87,536. This is a partial read: ask again with offset=39881 for what follows._ 1962 Bochliit14r Sfogh v. Tru Stak of Punjab .M udholkat J. 1962 March 7. 724 SUPREME COURT REPORTs [l96ZJ SUPP. would then be the action of the Government. Horo one of the Under Secretaries to the Government of Punjab informed the appellant by his letter dated !\fay, 1, 1957 that his representation '•had been considered 1tnd rejected", evidently by the State Government. Thh; would show that appropriate action had been taken under the relevant rule. Tho appeal is thus without substance and is dismissed. In view of the fact that the appellant is a displaced person with heavy responsibilities and with limited or possibly hardly any means we diroct that the costs shall be borntl by the parties concerned. BHAURAY v. B. BAIJNATH SINGH (P. B. GAJB!'!DltAGADKAR, A. K. SARKAR, K. N. WANCHOO, K. C. DAS GUP'l'A and N. RAJA· GOl'ALA AYYANGAR, JJ.) Pre-eniption-Stalt1tes entitling neighbours, co-sharera et.c. to pre-empt-C . the vendor will exclude the more remote. There were prov1s1ons in the Act for giving notice of an intended sale . to .persons having a right of pre.emption, for the loss of die ~1ght of pie-emption in case no action \vas taken on the notice and for fixation of a fair price by the Courl. It was contended 38.C.R. SUPREME COURT REPORTS 725 thats. IO offended Art. 19(1)(f) of the Constitution and was 1161 void. Section 16 of the Punjab Pre•emption Act, 1913, as applied to Delhi, provided for pre-emption on six grounds, the first, third, fourth and sixth grounds being in favour of co. sharers, owners of common staircases, owners of common entrance from a street and owners of contiguous property. By s. 7 the operation of the Act was limited to localities where the custom of pre-emption was prevalent. There were provisions in the Act for giving of notice etc. as in lhe Rewa Act. Section 5 exempted agricultural property, shops, serai, katra, dhar~msala, moaque and other similar building from the purview of the Act. It was contended that s. 16 offended Art. 19(1)(f) and that the Act contravened Art. 14. Chapter 14 of the Berar Land Revenue Code, 1928, created a right of pre-emption in the holder of an interest in a survey-number when any person having an interest in any land in that survey-number sold it to a stranger provided that the interest sold was in unalienated land held for agricultural purposes. It was contended that this law of pre-emption was inconsistent with Art. 19(I)(f). ..-,z Held, (per Gajendragadkar, Wanchoo and Ayyangar,JJ., Sarkar and Das Gupta,JJ., Contra) that s. IO of the Rewa Act which provided for pre-emption on the ground of vicinage imposed unreasonable restrictions on the right to acquire, hold or dispose of property guaranteed by Art.19(1) (f) of the Constitution and was void. It placed restrictions on the right of the vendor to sell his property to a purcha~er of his choice at a price settled between them ; it exposed the purchaser to litigation even after the requisite notices had been given by the vendor. There was no advantage to the general public from such a law. The real reason behind a Jaw of pre· emption on the basis of vicinage was to prevent strangers i.e. people belonging to different religion, race or caste, from , acquiring property in any area populated by a particular fraternity or class of people. This could not be considered reasonable in view of the prohibition under Art. 15 of the C0nstitution of discrimination only on grounds of religion, race, caste, etc. Shri Audh Behari Singh v. Gajadltar Jaipuria, (1955) I. S.C.R. 70; Ibrahim Saib v. Muni Mir Udim Saib, (1870) 6 Mad. H.C.R. 26and1ffohomed Beg Amin v. Narayan Meghaji Patil, ( 1916) I.L.R. 40 Born. 358, referred to. Per Sarkar and Das Gupta, JJ. Section 10 of the Rew' i . . . . . • . . Bhau·Ram •• B. Baijnoth Singh 19GZ BhauRam v. B. BlliJn•lh SU.,A 726 SUPREME OOURT REPORTS [1962] SUPP. Act did not offend Art. 19(l)(f) and was valid. The right of pre-en1ption was not frequently exerci!>ed and the restric .. tions imposed by it did not affect many persons. Jn a la~ge part of the country there \Vas customary !aw of pre-emption which had been found to be reasonable before the Constitution came into force ; nothing had happened since to make it unreasonable. The provisions regarding notice etc. relaxed the severity of the restriction. The law imposed two restrictions on the vendor-first that he may be prevented from selling property at any price he liked and secondly, that he could not sell it to anyone of his choice. ~fhe first restriction was clearly reasonable a• it prevented the vendor from selling at exorbitant prices and the rich from amassing property· The second was not a great deprivation. The law placed the restriction on the purchaser that he could not acquire a particular property if the adjoining owner wanted it. In view of the Indian \\"ay of life to live in compact communities this was a reasonable restriction. It would also avoid disputes that may arise if a stranger were allO\\'ed to come in. The reasons for upholding pre-emption on the ground of being co-sharers were equally applicable to pre-emption on the ground of vicinage. The proviso to s. IO which laid down that a person nearer in relationship to the vendor shall have a preferential right was not bad ; it did not create a right of pre-emption but it merely solved a problem arising out of a valid right of pre-emption arising in favour bf more then one person. Sardha Ram v. Haji Abdul, A.IR. (1960) Punj. lll5 and' Ramc/1andrn Kri,,hnaji Dhaga/e v. Janardan Krishna7>pa Jfancrir, A.I.R. (1955) Nag. 225, approved. Punch Gujar Gaur Brahmins v. Amarsingh, A.J.R. (1954) Raj. 100, Babula/ v. Gowardhandas, A.J.R. (1956) M.B.J. i'!Pu:al. AND Civil Appeal No. 59:i of 1960. Appeal from the judgment and order dated October 29, 1957, of the Punjab High Court in Civil Revision Application No. 518 D of 1956. L,K. Jha. R. Patnaik and A.D. Mathur, for the appellant (in C.A. No. 270 of 1955). D. N. Mukherjee, for respondent No. I. S. K: Kapur and P. D. Menmi, for the Inter· vener. A. V. Viswanatha Sastri and A. G, Ratnaparkhi, for th!l appellants in (C.A. No. 430 of 1958). S. A. Sohoni and Ganpat Rai. 'for the respon· dent{!, · R. S. N1trnla, for the appellant (in C. A. No. 595/fiO). S. K. Kap11r and Ganpat Rai, for the respon· dent. 1962. March 7. The Judgment of Gajendra· gadkar, Wanchoo aud Ayyanga.r JJ., was delivered by W:mchoo .J. The ,Judgment of Sarkar and Das Gupta, ,J,J., was delivered by Sarkar, J. WA:>CHOO, J.-These three· appeals which have been heard together raise the constitutionality of cort'1in provisions of the pre-emption laws pre· vailing in tho States of Madhya Pradesh (Rewa-3tate area), l'elhi and Maharashtra (Berar-aroa). Three suits for pre.emption wore brought by· pre-emptors which were decreed, and the present appeals are by purcha{!ers. Though the appeals were heard together J'S some of the points involved wore common, i~ . . . 3 S.C.R. SUPREME <;JOURT REPORTS 729 would be convenient to deal with each appeal separately because the Jaw involved in each case is different. We shall begin with C.A. 207 of 1955. This is eoncerned with the Rewa State Pre-emption Act, l\J46 (hereinafter called the Rewa Act), and particularly with s.10 thereof, which is in these terms:- "Classes of pre-emptors :-Persons of the following classes shall have a right of preemption:-- ( 1) Any person who is a co-sharer or partner in the property sold and foreclosed.•: ~ . (2) Any person who. owns arty immovable property adjoining the property sold or foreclosed or in case of transfer of tenancy rights, the land which is the subject of such rights. Provided that among the above mentioned classes the first in order will exclude the second and among persons of the same class, the nearer in relationship to the person whose property is sold or foreclosed will exclude the more remote." We are in the present case concerned with the second clause by which a person owning immovable property adjoining the property sold or foreclosed · is entitled to pre-empt subject to the order provided in the proviso. In this case, both the purchaser and the pre-emptors hold property adjoining the. · property sold, but as the pre-emptors were· related to the vendor, while the purchaser was not, the suit was decreed irt favour of the pre-emptors in view of the proviso. The question therefore that arises is whether a right of pre-emption by vicinage offends 4rt. I9(l)(f). There has beeμ divergence of opinion 1962 Bhau Ram v. B. Baijnath Singh Wanchoo J. 1962 v. B. Baijnath Singh W11nchoo J. 730 SUPREME COUR'I'. REPORTS [l!lu2] SUPP. between various High Courts on this qm'stion. The High Courts of lfajasthan, Madhya Bharat and Hyderabad and the Judicial Commissioner, Vindhya Pradesh have taken the view that such a right of pre-emption offends Art. 19( l)(f) whilo the High Court of Punjab has held otherwise. Before, h"owever, we deal with the main points urged in this case we may notice the argument based on the decision of this Court in Shri Audh Behari Singh \". Ga_jad!tar Jaipuria, where it was held that the law of preemption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser~ The argument is that since the righ.t of pro-emption attaches to the property sold it ls an incident of property, and thernfore cannot be held to be a restriction on the right to acquin', hold and dispose of property. On the other hand it is urged that if the law of pro-empt.ion creates a right which is an incident of lJroperty, even so it would bP- a restriction ereatcd by law on the fundamental right guarnnteed undor Art. I !J( I)( f) of the Constitution. We are of opinion that even if the law of pre-emption creates a right which att11ches to property it would be creating a restriction so far as the acquiring, holding or disposing of property is concerned which was not them before the law of pre-empt.ion was enacted. Therefore, even if the liability attaches to the property, it will still amount to a restriction on the right guaranteed by Art. 19(1 )(f), when it attaches to the property by the law of pre-emption. Article 19 (i) (f) gives a fundamental right to a citizen to acquire, hold and dispose of property and cl. ( 5) of that Article permits reasonable restrictions to be imposed by law on thio right in t.bo interests of thr gcmmil public. There can hen~ r]oubt that a law of pre-empt.ion docs impose restriction ~n the fundamental right guara!lteed -qnder :Art. ~ !J 3 S.C.R. SUPREME COURT REPORTS 731 (i) (f) and the question is whether the restriction imposed in the ttewa case is reasonable and in the interests of the general public. Section 1(1 of the Rewa Act applies to all kinds of property, whether urban or rural, and whether agricultural land or houee property, and it is in that context that its reasonableness will have to be judged. There is nothing to show in this case that there was any preexisting custom of a similar nature prevalent in any ·part of the area to which the Rewa Act applies; and even if any custom was prevalent in any area, there is nothing to show what precisely that custom was. In any case evsn if any custom was prevalent in this area before the Rewa Act came into force and it· was held reasonable by courts, that would not in our opinion be a decisive factor in considering whether the restrictions imposed by the Rewa Act are reasonable or not. We have to judge the reasonableness of the law in the context of the fundamental rights which were for the first time conferred by the Constitution on the people of this country and which were not there when the courts might have considered the reasonableness of the custom, if any, in the context of things then prevalent. Nc.r do we think that the fact that the right of pre·emption may not be actually exercised in the case of even a large number of sales can have any bearing on the question whether the law imposing the restriction is reasonable or not. Let us therefore see what the Rewa Act provides. Section 10, as we have pointed out, gives a right of pre-emption first to co-sharers and secondly to owners of adjoining property to which we shall refer hereafter as pre·emption by vicinage. We are not concermid in the present appeal with the case of co-sharers, with which we shall deal in a later part of the judgment. Ordinarily, if there was no Jaw of pre.emption a vendor would be entitled to sell his property to anybody for any price that may pe 11ettled between him and the purchaser, '.!'hi~ '· f• 1962 Bhau Rom v. B. Baijnath Singh Wanehoo J. 1962 Rhau Ram v. B. Ra1j1Jath Singh JY111uhoo J, 732 SUPREME COURT REPORTS (1962) SUPP. right is clearly restricted by the law of pre-emption which may in many ca.sos result in a depression of the price which the vendor may otherwise be ablo to ge~ for his property. Further the Act provides that if the vendor and the vendee desire that there may be no suit for pre-empt.ion tho vendor can give notice to possible pre-omptors of the price at which the vendor is rilling to sell such property. This notice is given through the court within the local limits of whose jurisdiction the property is situate. On such notices being given to possible pre-emptors. the pre-emptor will lose the right of pre-emption unless with.in one month frodl the date of service of such notice, he or his agent pays or tenders the price to the vendor: see · ss. 12 and I 3. Further. s. 15 shows that even where such a notice has been given and the pr:ice has not been paid or tendered, a suit for pre-emption can be filed after tho sale in spite of s.13 on the ground that the price stated in the notice was not fixed in good faith. The court then decides whether tho price stated in the notice id the proper price, and if it comes to tho concln~ion that it is not it has the power to fix such price as 11ppears to it to be the fair market price of the property sold. Clearly, therefore, th ore is a restriction on tho right of the vendor to sell the property at any price to which the purchaser has agreed and a suit for pre-emption can be filed even where a preemptor ·is not prepared to pay the agreed price and can have it reduced. The notice therefore providfd in s. 12 and the failure of the pre-emptor to comply with it under s, 13 are really of not such value, for thl• pre-emptor can always get over the provisions of s.13 by alleging that t-he price entered in thn notice was not fixed in gooJ faith. In effect, therefore, "very sale will be open to pre-emption and the law Qf pro-emption thus provides a crop of litigation for the vendor and the vendce. This is the first result of tho law of pm-emption. Furt}\er we "All !19 '1 I c· 3 s.c.R. SUPREME COURT REPORTS 733 reason to think· that the law of pre-emption prevents the sale of property at an unconscionable price for if a vendor is demanding an unconscionable price he will not be able to find a vendee. In any case the price is always settled by agreement between the vendor and the vendee and there is no reason to hold that such an agreed price would b;; an unconscionable price. Nor do we think that the la.w of pre-emption in intended to provide for fixation of reasonable price by courts ; therefore that can hardly be a reason to hold that it is a reasonable restriction in the interests of the general public on the right of the vendor under Art. 19 ( 1 )(f). We do not think that the restrictions placed by the law of pre-emption in .a case based on vicinage have any effect on prices being reasonably fixed, and the main effect we can see is that the law may give rise to a crop of litigation. We cannot therefore see any advantage to the general public by such a law of pre-emption and in any case the dis, advantage certainly overweighs the advantage that may result to a small section of the public. Now let us look at the matter from the point of view of the vendee. He comes to an agreement with the vendor to purchase the property at a cerbin agreed price. Let us also assume that the vendor has given notice under s.12 and no action has been taken by the pre-emptor under s.13. Ther.eafter the vendee purchases the property and would be entitled to hope that as the price was not paid or tendered under s.13, he would be able to hold and enjoy the property without any further trouble, But as we have pointed out already even though ss.12 and 13 are there it is always open to a preemptor to file a suit for pre-emption after having failed to. take action under s.13 by merely alleging that the price stated in the notice given to him was not fixed in good faith. So the vendee who may have purchased ~he property after action being taken under ss.12 and 13 is forced into litigation on the 1962 Bhau Ram v. B. Baijnath Singh Wanchoo J. 11161 Bll•ciRam •• B, Baijnath Singh WacAooJ. 734 SUPREME COURT REPORTS [1962] SUPP. ground that th(l price agreed is presumably too high. Thus there is clearly a rostl'iction on his right to hold propert.v, and even though the vende(l may eventually succeed on the footmg that the price :tgroed is not above the market value he is compelled to go through litigtition in order to hold the property. Such a restriction would thus appear to be unreasonablo for it allows the pre-emptor to go to court evcm after ss.12 and 13 have beon complied with. Let us further look to the broader aspects of the provisions rel:iting to pre-emption by vi<:inage. It .may be stated that the right. of pre-emption was not recognised under the Hindu law and is not enforced in large parts of this <'ountry to tho south of the Vindhyas. It Cl'me to be enforced after the advent of i\Iohomedan rule as based on custom which was accepted by courts, particularly in ~orthern India. While in )/orthern India the courts enforced the right of pre-emption based on custom, even where there was no statutory law of preemption holding that it wa,s in accordance with justice, equity and good conscience, in Southern India the view taken was that it was opposed to principles of justice, equity and good conse~cnce: (see Ibrahim Saib v. 11funi Mir Udin Saib and (1) Mohmned Beg Amin Bert v. Narayan Me,ghaji Patil)('). The reasonableness of a custom is, however, not a. co.nstant factor and what is reasonable at one stage of tho progress of society may not be so at l\nothcr stage. It is in this context that we have to judge the law of pre-emption as it was later put into various statutes. Before the Constitution came into force, the statutes if they were passed by competent authority, eould not be challenged; but we have now to judge the reason ablene88 of these statutes in the light of the fundamental rights guaranteed to the citizens of this country by the Constitution. In (I) (1870' 6. Mad. H.C.R. 26. (2) (1916) I.L.R. 40 Bom. 358. . .. , .. ~ s.c.R. StrPR:FlME COURT REPORTS 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 :f'rom acquiring property in an area which had been populated by a particular fraternity of class of people and in those tirμes a right of pre·emption which would oust a stranger from the neighbourhood may have been tolerable or reasonable, But the Constitution now prohibits dis.criminatiou <1gainst any citizen on grounds only of religion, r .ce, 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 reason for preemption may be vicinage, the real reason 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. peo]Jle belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers fro,' 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 interests of the general public in the st!lte of society m the present day.• It is urged, however, that at any rate, in the case of agricultural properties, pre-emption by vicinage results in consolidation of agricultural lands, and that at any rate is an advantage. How far the 1962 Bhau Ram . v. B. Baijnath Siugh Wanchoo J, ~ 1962 Bhau Ram v. B. Baijnalh Singh rv a"'hoo J. ~.16 SUPREME COURT REPoRTS (1962] SUPP. argument of consolidation can be availed of now when we find that in most :Statos laws are being pa~sed which are putting ceilings on agricultural holdings is a matter which it is unnece!lB&ry to consider in the prrs~nt emm, for the Rewa Act applies not only to agricultural holdings but also to burn property including house property. There is no quostii>n of any advantage arising out of consolidation whore one is dealing with urban property or house property. The matter of consolidation might have had some hearing if the RewaAct was appli<;able to agricultural lando only. But as it applies to urban lands as woll as house property where no quostion of consolidation of holdinf;ls arises, the impugned provision cannot be held to be a. reasonable re8trietion in the interests of the general public on the ground that it lead·s to eo!lsolidation of agricultural holdings. There is no way of severing the application of the law so far as it relates to agricultural holdings from its application to urban or house property and therefore the entire provision as to vicinage must fall, even if somet.hing could be said in it.a favour with respect to agricult1Jre holding on the ground of consolidation. We are therefore of opinion that the second clause of s. IO imposes an W1reaeonable restriction on the right to acquire, hold or dispose of property guaranteed under Art. 19(1) (f) of the Constitution and must be struck down. So far as the proviso is concerned it applies both to the first . and the second clause and it will survive for the purp<>Bo uf tho firHt clause only, which is not in dispute Lefore us. ' In this view of the matter C. A. 270 of 1955 must suc.ceed. We next come to C.A. 595 of 1960. This relates the Punjab Pre-emption Act, l9l 3(Punj. I of 1913), (hereinafter referred to as the Punjab Act), as applied to tho city of old Delhi. W ~ are (- .. 3 s.c.R. SUPREME COURT REPORTS concerned with s. 16 of the Punjab Act, which deals with urban immovable property and is in these terms :- "The right of pre-emption in respect of · urban immovable property shall vest, • · · firstly, in the co-shares in such property, if any; secondly, where the sale is of the site of the building or other structure, in the owners of such building or structure ; thirdly, where the sale is of a property having a staircase common to other properties, in the owners of such properties ; "fourthly, where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties ; fifthly, where the sale ia of a servient, property in the owners of the dominant property, and vice versa ; sixthly, in the persons who own immovable property contiguous to the property sold." The suit was brought by Nanak Singh respondent who claimed pre-emption with respect to a sale in favour of the appellant of a house and was rested on the first, third, fourth and sixth grounds in the · section. The question whether s. 16 of the Punjab Act was ultra vires the Constitution was tried as a preliminary issue. The subordinate judge held in favour of the respondent. Thereupon the appellant went in revision to the High Court. The High Court held that the. first, third and fourth grounds in s.16 did not offend Art. 19 (ll (f); it· further held that the sixth ground offended 1961 Bhau Ram ••• B. Baijhc.th 8ingA Wanchoo J. • J96Z Bh:P. Art. 19 (l) (f). Thia IRl!t view was apparently in conflict with the earli~r Full Bouch decision of that · Court in UUam Singh v. Kartar Singh (I). Lator tho High Court held in Sardlia Ram v. Haji Abdul Maji,d Mohd. Amir Kltan {') by a five-Judgo Bench that the provisions contained in clause "sixthly" of s. 16 were not ultm vire.s the provisions of the Constitution inasmuch as the restrictions imposed were not unreasonable. The appellant thereupon came to this Court on a. certificate granted by the High Court challenging the view of the High Court that the first, third and fourth grounds were Cons-· titutional. Further, in view of the five-Judge decision in 1960 which has shaken the view taken in the judgment under appeal on the sixth grounds, the appellant has urged that that decision is correct. It may be noted that under e. 7 of the Punjab Act, s. 16 only applies to a. town sub-division of a. town when a custom of pre-emption is proved to have been in existence in such town or sub-division at the time of the commencement of the Aot and not otherwise. [tis not disputed thats. 16 applies to that area of old Delhi in '\\' hich the property is situate. The fa.ct however that such a custom was prevalent in this area. before 1!113 when the Punjab Act ca.me into force is not a decisive factor in holding that the provisions of s. 16 of the Punjab Act a.re necessarily reasonable. We have already dealt with this aspect of the matter when dealing with the Rowa Act, and need not add anything more. We have also doalt with the question a.s to the right of pre-emption based on vicinago when doaling with the ltewa Act, and for the reasons given ea..rlier we hold that pre:e~ption based. on vicinage 1s an unreasonable restnct10n on the right to hold, acquire or dispose of property conferred by Art. l\J (l) (f). Wo may however briefly notice the grounds on which the two Punjab cases of l!l54 and (I) A,l.R. 1954 Pun. 55. (2) A.l.R. I 96 0 P"n. I Sf• 3 .· ··.· S.C.R. ' 1960 have held otherwise. In the 1954 case both ss. 15 and 16 of the Punjab Act were dealt with together. We ·are not here concerned with s. 15 and express no opinion with respect to it. As to s.16, the reasons which impelled the learp.ed Judges to hold that the provisions of s. 16 were constitutional were "to reduce the changes of litigation and friction and to promote public order and domestic comfort, and to promote private and public decency and convenience". We are not able to understand how providing pre-emption on the ground of vicinage would carry out these objects, assuming their promotion is in the interests of the ge11eral public. Perhaps the reasons why these grounds were given in the 1954 case may be that the learned Judges were considering not merely pre-emption. by vicinage but also with other grounds provided in s. 16. Whatever may be said about these' reasons so far as other grounds, of pre-emption contained in s. 16 are concerned, these reasons have in our opinion no validity so far as pre-emption by vicinage is concerned. Turning now to the case of Sardha Ram, (') we may note that the learned Judges observed that "pre-emption imposes restrictions on the right of the vendee to acquire and hold property and the right of the vendor to dispose of property. It limits the power of the vendor to sell his property to whomsoever he may please or prevents him from showing preference to anyone to whom he may wish to sell ........ .it is a clog on the freedom on sale and tends to diminish the market .value of the property." They were also conscious of the trials and tribulations of a vendor whose property is governed by the law of pre-emption. But they seem to have upheld the constitutionality of the sixth ground main\y for two reasons, namely (i) that it had already been upheld in Uttam Singh's case (') and (ii) that "what is reasonable in any particular (1/ A.J.R. 1960 Pun. 196. (2) A.I.R. 1954 Pun. 55. 1962 Bhau Rom v. B. Baijnath Singh W1,1r.choo J. 19GZ Bh .. Rom v. B. Baijnath Singh W anekoo .·'. 740 SUPREME COURT REPoRTS [1!)62] SUPP. case is difficult of ascertainment;" that the choioo of measures is for the legislature, that the legislatures a.re presumed to have investigatod the subject and to havo acted with reason, that an Act of the legislature should be sustained unless it violates constitutional limitations beyond roasonable question". The last Punjab case therefore does not add any further roaaon is support of the reasonableness of the restriction placed by the law of pre-emption relating to viclnage, and if anything, the observations mentioned earlier show how unreasonable the restriction can be, and in the circumstances we must hold that the sixth ground in 11. 16 is unconstitutional for reasons already indicated when dealing with the Rewa Act. This brings us to the consideration of the first ground which gives a right of pre-emption to a cosharcr in the property sold. The question as to tho conRt,itutionality of a law of pre-emption in favour of a co-sharer has been considered by a number of High Courts and the constitutionality hllll been uniformly upheld. We have no doubt that a law giving such a right imposes a reasonable restriction which is in the interest o( the general public. If an outsider is introduced is a co-sharer in a property it will make common management oxtremoly difficult and destroy the .benefits of ownership in common. The result of the law of pre-emption in favour of a cosharer is that if sales take place the proporty may eventually come into the hands of one co-sharer as full owner and that would naturally be a great advantage the advantage is a.II the greater in the case of a residential house and s. 16 is concerned with urban property; for tho 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 clea1· .,,nd in our opinion outweigh the disadvantages which the vendor may 3 S.C.R. SUPREME COURT REPORTS 741 suffer on account of his inability to sell the property to whomsoever he pleases. The vendee also cannot be said to suffer much 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 oo-sharership is a reasonable restriction on the right to acquire, hold and dispose of property and is in the interests of the general public. The same reasoning in our opil)iiln will apply to the third ground, ~'where the sale is of a property having a staircase common to other properties, in the owners of such properties". This ground stands on the same footing practically as the . first ground relating to co-sharers, and for the same reason we hold that it is a reasonable restriction, and is in the interest of general public. Turning now to the fourth ground, "where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties", this ground is in our opinion similar to the third ground, the only difference being that in one case there is a common staircase while in the other case there is a common private passage from the street. The idea behind this ground seems to be that the buildings are in a common compound and perhaps were originally put up by members of one family or one group with a common priv11te passage from the public street. In such a case the ownew of the buildings would stand more or less in the position of co. sharers, though actually there may be no cosharership in the house sold. But .as we have said this case would approximate to cases of a common staircase and co-sharer; thereforo, for reasons given in the case of co-sharers we uphold the right of pre-emption covered by the fourth 15round in s. 16. The ease falling under the fourth 19611 Bhau Ram •• B. Ba.ijnath. Singh W.anchoo J. 1951 8"4u R..,, •• R. B