1986 (2) TMI 338 - SC - Indian Laws

Section 15 of Punjab Pre-emption Act 1913 declared unconstitutional for violating fundamental rights through gender-based exclusions

ATAM PRAKASH Versus STATE OF HARYANA

The SC declared Section 15 of the Punjab Pre-emption Act, 1913 unconstitutional, holding that pre-emption rights based on consanguinity violate ... Constitutional validity of Section 15 of the Punjab Pre-emption Act, 1913 - right of pre-emption based on consanguinity - sale of agricultural land being waste land reclaimed by the vendee - Violation of fundamental right guaranteed by sec.19(1)(f) of the Constitution - HELD THAT:- The processes of history cannot be reversed and we cannot hark back to the traditional rural-family-oriented society. Quite 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 case may be, have rights of full ownership and their kinsfolk have no present right whatsoever. The right of pre-emption is not to be confused with the right to question the alienation of ancestral immovable property which the male 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 dissociated from custom or personal law. 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. First we notice that neither the father nor the mother figures in the list though the father's brother does. me son's daughter and the daughter's brother does. The son's daughter and the daughter's daughter do not appear though the son's son and daughter's son do. The sister and the sister's son are excluded, though the brother and the brother's son are included. Thus relatives of the same degree are excluded either because they are women or because they are related through women. These are but a few of the intrinsic contradictions that appear in the list of relatives mentioned in s.15 as entitled to the right of pre-emption. It is ununderstandable why a son's daughter, a daughter's daughter, a sister or a sister's son should have no right of pre-emption whereas a father's brother's son has that right. As s.15 star, s, if the sole owner of a property sells it to his own father, mother, sister, sister's son, daughter's daughter or son's daughter, the sale can be defeated by the vendor's father's brother's son claiming a right of pre- emption. We are thus unable to find any justification for the classification contained in section 15 of the Punjab Preemption Act of the kinsfolk entitled to pre-emption. The right of pre-emption based on consanguinity is a relief of the feudal. It is totally inconsistent with the Constitutional me. It is inconsistent with modern Ideas. The reasons such justified its recognition quarter of a century ago, namely, the preservation of the integrity of rural society, unity of family life and the agnatic theory of succession are today irrelevant. me list of kinsfolk mentioned as entitled to pre-emption is intrinsically defective and self-contradictory. There is, therefore, no reasonable classification and clauses 'First', 'Secondly', and ' Thirdly' of s.l5(1)(a), 'First', 'Secondly' and 'Thirdly', of s.15(1)(b), Clauses 'First', 'Secondly' and 'thirdly' of s.15(1)(c) and the whole of section 15(2) are, therefore, declared ultravires the Constitution. We are told that in some cases suits are pending in various courts and, where decrees have been passed, appeals are pending in appellate courts. Such suits and appeals will now be disposed of in accordance with the declaration granted by us. The decrees will be binding inter-partes and the declaration granted by us will be of no avail to the parties thereto. Issues Involved:1. Constitutional validity of Section 15 of the Punjab Pre-emption Act, 1913.2. Right of pre-emption based on consanguinity.3. Classification of kinsfolk entitled to pre-emption.4. Application of Articles 14, 15, and 19(1)(f) of the Constitution.Summary:1. Constitutional Validity of Section 15 of the Punjab Pre-emption Act, 1913:The constitutional validity of Section 15 of the Punjab Pre-emption Act, 1913, as applied in Haryana, was challenged. The Act was repealed in Punjab in 1973 but continued in Haryana. The Supreme Court previously upheld the Act's validity in Ram Sarup v. Munshi (1963) under Article 19(1)(f). The current challenge focuses on Articles 14 and 15.2. Right of Pre-emption Based on Consanguinity:The right of pre-emption based on consanguinity was described as 'feudal,' 'piratical,' and 'tribal,' and deemed inconsistent with the Constitutional scheme. The Supreme Court noted that since India is now a socialist republic, feudal rights must be abolished. The right to property, no longer a fundamental right post-Forty-Fourth Amendment, must be examined under Articles 14, 15, and 19(1)(d) and (g).3. Classification of Kinsfolk Entitled to Pre-emption:The classification of kinsfolk under Section 15 was scrutinized. The Court found the list of persons entitled to pre-emption to be inconsistent and self-contradictory. The exclusion of certain relatives, such as the father, mother, sister, and sister's son, while including others like the father's brother's son, was deemed illogical and unjustifiable. The classification was held to be unreasonable and not in tune with modern constitutional principles.4. Application of Articles 14, 15, and 19(1)(f) of the Constitution:The Court referenced previous judgments, including Bhau Ram v. B. Baijnath Singh, which invalidated pre-emption based on vicinage under Article 19(1)(f), and Ram Sarup v. Munshi, which upheld pre-emption for co-sharers but questioned its applicability based on consanguinity. The Court concluded that the right of pre-emption based on consanguinity could not be sustained under Articles 14 and 15, as it was inconsistent with the principles of equality and non-discrimination.Conclusion:The Supreme Court declared clauses 'First,' 'Secondly,' and 'Thirdly' of Section 15(1)(a), (b), and (c), and the whole of Section 15(2) of the Punjab Pre-emption Act, 1913, as ultra vires the Constitution. Pending suits and appeals will be disposed of in accordance with this declaration, while final decrees not appealed will remain binding inter-partes. No order was made regarding costs.