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PETITIONER: BHAU RAM

       Vs.

RESPONDENT: B.   BAIJNATH SINGH

DATE OF JUDGMENT: 07/03/1962

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR 1476            1962 SCR  Supl. (3) 724  CITATOR INFO :  RF         1963 SC 533  (16,24)  F          1965 SC 314  (2,3,4)  F          1967 SC1578  (9)  R          1986 SC 859  (7,9,10)  R&E        1992 SC 207  (2)

ACT: Pre-emption-Statutes  entitling neighbours, co-sharers  etc. to   pre-empt-Constitutionality   of-If  offend   right   to property--Whether discriminatory-Rewa State Pre-emption Act, 1946,  s. 10-Punjab Pre-emption Act, 1913(Punj. 1 of  1913), s. 16--Berar Land Revenue Code, 1928, Ch.   XIV-Constitution of India, Arts. 14, 19(1)(f), 19(5).

HEADNOTE: Section  10  of  the  Rewa  State  Pre-emption  Act,   1946, conferred the right of pre-emption on the ground, inter alia of vicinage.  The proviso to S. 10 provided that among  pre- emptors of the same class the nearer in relationship to  the vendor will exclude the more remote.  There were  provisions in the Act for giving notice of an intended sale to  persons having a right of pre-emption, for the loss of the right  of pre-emption  in case no action was taken on the  notice  and for fixation of a fair price by the Court.  It was contended  725 that  s. 10 offended Art. 19(1) (f) of the Constitution  and was 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  cortiguous  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  the Rewa Act.  Section 5 exempted agricultural property,  shops, serai, katra, dharamsala, mosque 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.

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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(1)(f). Held, (per Gajendragadkar, Wanchoo and Ayyangar,JJ.,  Sarkar and Das Gupta, JJ., Contra) that s. 10 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 purchaser  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 law  of preemption 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 Constitution of discrimination only on grounds  of religion, race, caste, etc. Shri  Audh  Behari  Singh v. Gajadhar  Jaipuria,  (1955)  1. S.C.R.  70  : Ibrahim Saib v. Muni Mir Udim Saib,  (1870)  6 Mad.   H.C.R.  26 and Mohomed Beg Amin  v.  Narayan  Meghaji Patil, (1916) I.L.R. 40 Bom. 358, referred to. Per Sarkar and Das Gupta, JJ.  Section 10 of the Rewa 726 Act did not offend Art. 19(1) (f). and was valid.  The right of pre-emption was not frequently exercised and the restric- tions imposed by it did not affect many persons.  In a large part  of the country there was customary law 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. The first restriction was clearly reasonable as 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 way of life  to live in compact communities this was  a  reasonable restriction.  It would also avoid disputes that may arise if a  stranger  were  allowed  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. 10 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 of more then one person. Sardha  Ram  v.  Haji Abdul, A.I.R.  (1960)  Punj.  185  and Ramchandra Krishnaji Dhagale v. Janardan Krishnappa  Marwar, A.I.R. (1955) Nag. 225, approved.  Panch Gujar Gaur Brahmins v. Amarsingh, A.I.R. (1954)  Rai. 100,  Babulal v. Gowardhandas, A.I.R. (1956) M.B.I.  Sewalal Ghansham v. Param Lalanju, A.I.R. (1956) V.P. 9 and Moti Bai v. Kand Kari Channaya, A.I.R. (1954) Hyd. 161, disapproved.

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Shri Audh Behari Singh v. Gajadhar Jaipuria, (1955) 1 S.C.R. 70 and Tyson v. Smith, (1938) 9 Ad. & E.P. 406, referred to. Held,  further, that the first, third and fourth grounds  of pre-emption  in s. 16 of the Punjab Act as applied to  Delhi did  not offend Arts. 19(1) (f) and 14 and were valid.   The law,  under  the first ground in s. 16, providing  for  pre- emption by co-sharers imposed reasonable restrictions in the interest  of  the  general public on the  right  under  Art. 19(1)(f).  If an outsider was introduced as a co-sharer in a property it would make common management extremely difficult and  destroy  the  benefits of ownership  in  common.   The- advantage of                             727 excluding a stranger in the case of a residential house  was all  the  greater as it would avoid all kinds  of  disputes. The third ground in s. 16, which applied in a case where the property  sold had a staircase common with other  properties stood practically on the same footing as that of co-sharers. The fourth ground in s. 16 which applied where the  property sold  had  a  common entrance from  the  street  with  other properties  was similar to the first and the  third  ground. Further, there was no discrimination in s. 16 because of the exclusion of certain properties from its operation by s.  5. So  far as agricultural property was concerned it  formed  a distinct  class  by  itself and there  was  no  question  of discrimination on’ that account.  With respect to the  other premises  exempted  by s. 5 they formed one  class,  namely, those to which the public resorted which were distinct  from residential property meant for private resident.  There  was no question of excluding strangers from such premises. Uttam Singh v. Kartar Singh A. I.R. 1954 Pun. 55 and  Sardha Ram v. Haji Abdul Majid Mohd.  Amir Khan, A.I.R. 1960,  Pun. 196, approved. Per  Gajendragadkar,  Wanchoo and Ayyangar, JJ.   The  sixth ground in s. 16 which provided for pre-emption on the ground of vicinage was invalid for the same reasons as s. 10 of the Rewa Act was invalid. Per  Sarkar  and Das Gupta, JJ.  The sixth  ground  of  pre- emption in s. 16 was also valid for the same reason as s. 10 of the Rewa Act was valid. Held,  further, that the law of pre-emption contained in  14 of  the Berar Code was valid.  It applied to those who  were co-sharers or were akin to co-sharers.  Such a right of pre- emption  would  result  in consolidation of  holdings  in  a survey number which would be in the interest of the  general public.      Ramchandra v.Janardan, A.I.R. 1955 Nag. 225, approved.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No.   270     of 1955. Appeal  by special leave from the judgment and decree  dated March 21, 1952, of the former Judicial Commissioner’s Court, Vindhya Pradesh in le.  A. No. 16 of 1952.                             WITH Civil Appeal No. 430 of 1958. 728 Appeal from the judgment and decree dated April 12, 1956, of the former Nagpur High Court in L.P.A. No. 116 of 55.                             AND Civil Appeal No. 595 of 1960. Appeal  from the judgment and order dated October 29,  1957, of  the Punjab High Court in Civil Revision Application  No.

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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. 1. S.  K.   Kapur and P. D. Menon, for the Intervener. A.   V.  Viswanatha  Sastri and A. G. Ratnaparkhi,  for  the appellants in (C.A. No. 430 of 1958).    S.     A. Sohoni and Ganpat Rai. for the respondents. R. S. Narula, for the appellant (in C. A. No. 595/60). S.   K. Kapur and Ganpat Rai, for the respondent. 1962.  March 7. The Judgment of Gajendragadkar, Wanchoo  add Ayyangar  JJ., was delivered by Wanchoo J. The  Judgment  of Sarkar and Das Gupta, JJ., was delivered by Sarkar, J. WANCHOO,  J.-,These  three  appeals which  have  been  heard together  raise the constitutionality of certain  provisions of  the pre-emption laws prevailing in the States of  Madhya Pradesh  (Rewa-State  area), Delhi and  Maharashtra  (Berar- area).   Three  suits for pre-emption were brought  by  pre- emptors  which were decreed, and the present appeals are  by purchasers.  Though the appeals were heard together as  some of the points involved were common, it  729 would  be  convenient to deal with  each  appeal  separately because the law involved in each case is different. We  shall  begin with C.A. 207 of 1955.  This  is  concerned with  the  Rewa  State Pre-emption  Act,  1946  (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  pre-               emption:--               (1)   Any person who is a co-sharer or partner               in the property sold and foreclosed.-               (2)   Any   person  who  owns  any   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 gold 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 is the pre-emptors were  related  to the  vendor,  white  the purchaser was not,  the  suit,  was decreed in 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 Art. 19(1)(f).   There  has been divergence. of opinion 730 between  various  High Courts on this  question.   The  High Courts  of  Rajasthan, Madhya Bharat and Hyderabad  and  the Judicial  Commissioner, Vindhya Pradesh have taken the  view that such a right of pre-emption offends Art. 19(1)(f) while the- High Court of Punjab has held otherwise.  Before,  how- ever, 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 v. Gajadhar Jaipuria, where  it  was hold  that  the  law of preemption  creates  a  right  which

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attaches to the property and on that footing only it can  be enforced against the purchaser.  The argument is that  since the right of pre-emption attaches to the property sold it is an incident of property, and therefore cannot be held to  be a  restriction on the right to acquire, hold and dispose  of property.  On the other band it is urged that if the law  of pre-emption  creates  a  right  which  is  an  incident   of property, even so it would be, a restriction created by  law on  the fundamental right guaranteed under  Art.19(1)(f)  of the Constitution.  We are of opinion that even if the law of pre-emption  creates a right which attaches to  property  it would  be  creating a restriction so far as  the  acquiring, holding or disposing of property is concerned which was  not there before the law of pre-emption 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 (1) (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 oil  this  right  in the interests of  the  general  public. There  can  be  no doubt that a taxi,  of  pre-emption  does impose  restriction  on  the  fundamental  right  guaranteed under.Art. 19 731. (i)  (f) and the question is whether the restriction imposed in  the Rewa case is reasonable and in the interests of  the general  public  Section 10 of the Rewa Act applies  to  all kinds  of  property,  whether urban or  rural,  and  whether agricultural  land  or  house 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 even  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.  Nor 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 concerned 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  law  of pre-emption a vendor would be entitled to sell his  property to anybody for any price that may be settled between him and the purchaser.  This 732 ‘ right is clearly restricted by the law of pre-emption  which may in many cases result in a depression of the price  which the  vendor may otherwise be able to get for  his  property.

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Further  the Act provides that if the vendor and the  vendee desire that there may be no suit for pre-emption the  vendor can  give  notice to possible pre-emptors of  the  price  at which  the  vendor is villing 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 within one month  from the date of service of such notice, he or his agent pays  or tenders  the  pi-ice  to  the vendor: see  ss.  12  and  13. Further. s. 15 shows that even where such a notice has  been given  and the price has not been paid or tendered,  a  suit for  pre-emption  can be filed after the 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 the price  stated in the notice is the proper price, and  if  it comes  to the conclusion that it is not it has the power  to fix such price as appears to it to be the fair market  price of  the  property  sold.  Clearly,  therefore,  there  is  a restriction on the 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 provided in s. 12 and the  failure  of the  pre-emptor to comply with it under s. 13 are really  of not  such value, for the pre-emptor can always get over  the provisions  of 3 by alleging that the price entered  in  the notice  was not fixed in good faith.  In effect,  therefore, every  sale will be open to pre-emption and the law of  pre- emption  thus provides a crop of litigation for  the  vendor and the vendee.  This is the first result of the law of pre- emption.  Further we see no  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 be 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  be  an unconscionable price.  Nor do we think that the law 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  Bee  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 disadvantage 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 certain 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. Thereafter  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

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good  faith.   So  the vendee who  may  have  purchased  the property  after  action being taken under ss.12  and  13  is forced into litigation on the 734 ground  that the price agreed is presumably too high.   Thus there  is  clearly  a  restriction  on  his  right  to  hold property, and even though the vendee may eventually  succeed on the footing that the price agreed is not above the market value  he is compelled to go through litigation in order  to hold the property.  Such a restriction would thus appear  to be unreasonable for it allows the pre-emptor to go to  court even after ss.12 and 13 have been complied with. Let us further look to the broader aspects of the provisions relating to pre-emption by vicinage.  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  country  to the south of the Vindhyas.  It came to be enforced after the advent  of  Mohomedan  rule as based  on  custom  which  was accepted  by courts, particularly in Northern India.   While in  Northern  India the courts enforced the  right  of  pre- emption  based on custom, even where there was no  statutory law  of  preemption holding that it was 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 conscience: (see Ibrahim Saib v.  Muni  Mir Udin  Saib and (1) Mohomed Beg Amin Beg v.  Narayan  Meghaji Patil) (2).  The reasonableness of a custom is, however, not a  constant factor and what is reasonable at, one  stage  of the progress of society may not be so at another 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 pawed  by competent authority, could not be challenged;  but we  have now to judge the reason ableness of these  statutes in  the light of, the fundamental rights guaranteed  to  the citizens of this country by the Constitution.  In (1)  (1870) 6. Mad.  H.C.R. 26.      (2)  (1916) I.L.R. 40 Bom. 358.                             735 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  reason for preemption may be vicinage, the  real reason behind the law was to prevent a stranger from acquir- ing  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 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

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restriction  on  the right to acquire, hold and  dispose  of property as now guaranteed under Art. 19(1)(f ), for, it  is impossible to see such restrictions as reasonable and in the interests  of the general public in the state of society  in 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 736 argument of consolidation can be availed of now when we find that in most states laws are being passed which are  putting ceilings  on agricultural holdings is a matter which  it  is unnecessary  to consider in the present case, for  the  Rewa Act  applies not only to agricultural holdings but  also  to burn  property  including  house  property.   There  is   no question of any advantage arising out of consolidation where one  is dealing with urban property or house property.   The matter of consolidation might have had--some hearing if  the Rewa Act was applicable to agricultural lands only.  But  as it applies to urban lands as well as house property where no question  of consolidation of holdings arises, the  impugned provision cannot be held to be, a reasonable restriction  in the  interests of the general public on the ground  that  it leads  to consolidation 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 something could be said in its favour with respect to agriculture holding on the ground of  consolidation.   We are therefore of  opinion  that  the second clause of s. 10 imposes, an unreasonable  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 purpose of the first clause only, which  is not in dispute before us. In this view of the matter C. A. 270 of 1955 must succeed. We  next come to C.A. 595 of 1960.  This relates the  Punjab Pre-emption   Act,  1913(Punj.  1  of  1913),   thereinafter referred  to as the Punjab Act), as applied to the  city  of old Delhi.  We are                             737 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 is  of  a  servient,               property  in the owners of the  dominant  pro-               perty, and vice versa               sixthy,  in  the  persons  who  own  immovable               property contiguous to the property sold."

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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 (1) (f) ; it further held that the sixth ground offended 738 Art. 19 (1) (f).  This last view was apparently in  conflict with the earlier Full Bench decision of that Court in  Uttam Singh  v.  Kartar Singh (1).  Later the High Court  held  in Sardha  Ram  v. Haji Abdul Majid Mohd.  Amir Khan (2)  by  a five-Judge  Bench  that the provisions contained  in  clause "sixthly"  of s. 16 were not ultra vires 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 Constitutional.  Further, in view of the  five- Judge  decision in 1960 which has shaken the view  taken  in the  judgment  under  appeal  on  the  sixth  ground,%,  the appellant has urged that that decision is correct. It  may be noted that under s. 7 of the Punjab Act,  is.  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 subdivision at the time of the commencement of  the Act  and  not  otherwise.  It is not  disputed  that  s.  16 applies  to that area of old Delhi in which the property  is situate.  The fact however that such a custom was  prevalent in this area before 1913 when the Punjab Act came into force is  not a decisive factor in holding that the provisions  of s. 16 of the Punjab Act are necessarily reasonable.  We have already  dealt with this aspect of the matter  when  dealing with the Rewa Act, and need not add anything more.  We  have also dealt with the question as to the right of  pre-emption based  on vicinage when dealing with the Rewa Act,  and  for the reasons given earlier we hold that pre-emption based  on vicinage  is  an unreasonable restriction on  the  right  to hold,  acquire or dispose of property conferred by  Art.  19 (1) (f).  We may however briefly notice the grounds on which the two Punjab cases of 1954 and (1) A.I.R. 1954 Pun. 55. (2) A.I.R. 1960 Pun. 196.  739 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 learned  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 general 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  preemption contained in s. 16 are concerned, these reasons have in  our

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opinion  no  validity so far as pre-emption by  vicinage  is concerned.   Turning now to the case of Sardha Ram,  (1)  we may note that the learned Judges observed that ",pre-emption imposes  restrictions on the right of the vendee to  acquire and bold 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  mainly  for  two reasons, namely  (i)  that  it  had already been upheld in Uttam Singh’s case (2) and (ii)  that ,what is reasonable in any particular (1) A.I.R. 1960 Pun. 196. (2) A.I.R. 1954 Pun. 55. 740 case  is  difficult  of ascertainment; that  the  choice  of measures  is for the legislature, that the legislatures  are presumed to have investigated the subject and to have  acted with  reason,  that  an Act of  the  legislature  should  be sustained  unless  it  violates  constitutional  limitations beyond reasonable question".  The last Punjab cue  therefore does   not  add  any  further  reason  is  support  of   the reasonableness of the restriction placed by the law of  pre- emption relating to vicinage, and if anything, the  observa- tions   mentioned   earlier  show   how   unreasonable   the restriction  can be, and in the circumstances we  must  hold that  the  sixth  ground in s. 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 co-sharer  in  the property sold.  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 it; 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  outweigh  the disadvantages which the vendor may                             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 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. The  same reasoning in our opinion 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

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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 private passage  from  the  public street.   In such a case the owners of the  buildings  would stand  more  or less in the position of  co-sharers,  though actually  there may be no co-sharership in the  house  sold. But as we have said this case would approximate to cases  of a  common staircase and co-sharer; therefore,  for’  reasons given in the case of co-sharers we uphold the right of  pre- emption  covered  by the fourth ground in s. 16.   The  case falling under the fourth 742 ground  must be distinguished from katras which  are  exempt from the, provisions of the Act in s. 5: (see Karim Ahmad v. Rahmat Elahi) (1). A conteetion was also revised that s. 16 offends Art. 14  of the Constitution.  This was based on s. 5 of the Punjab  Act which  gives  ex-emptions  to certain  properties  from  the application  of the Act and also on the ground that  it  did not apply to agricultural property.  So far as  agricultural properties  are  concerned, they form a  distinct  class  by themselves  and  therefore  there  can  be  no  question  of discrimination  on that account.  With regard to  exemptions contained  in  s.  5  with respect  to  shop,  serai  katra, dharmsala,  mosque  or  other similar  building,  these  are obviously distinguishable, for they are generally places  to which  public resort.  In particular stress was laid on  the exemption of katra.  A katra is not defined in the Act;  but it  appears that the primary meaning of the word "katra"  is enclosure  and  the secondary meaning is market;  see  Karim Ahmad v. Rahmat Elahi.  Generally, therefore, a katra  would be  a  business  locality  though  there  might  be   purely residential katras.  However, even purely residential katras would  consist of a large number of houses to which a  large number  of  people will resort.  In the  circumstances,  the premises  exempted under s. 5 are practically of one  class, namely,  those to which the public has to resort and  it  is this  class which is distinct from the rest  of  residential property  meant for private residence of  individuals  which has  been  exempted.  In the circumstances we do  not  think that  s.  16  can  be  said  to  violate  Art.  14  of   the Constitution in the light of s. 5 of the Punjab Act.  In the result. the appeal fails and is hereby dismissed.  The  case will now go back for disposal according to law and we  trust its decision will be expedited, (1)  A.I.R. 1946 Lah. 432.                             743 This  brings  us to C,A. 430 of 1958.  In this case  a  pre- emption suit was brought by the respondents under Chap.  XIV of the Berar Land Revenue Code, 1928 (hereinafter called the Code)  with  respect to survey To. 285, subdivision  I.  The pre-emptors hold sub-division 2 of survey No. 285 and  based their  claim on s. 174 of the Code.  Section 174  lays  down that  the right of pre-emption thereunder shall  arise  only

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for  unalienated  lands hold for  agricultural  purposes  in favour  of  occupants  in  a survey  number  in  respect  of transfers of interests is that survey number.  An  "occupant in  a  survey number" has been defined in s. 173 to  mean  a person having the right of an occupant; whether in his  sole right  or jointly with others, in that survey number, or  in any  portion of it.  But the right of pre-emption  does  not arise  even on a transfer of a part of a survey number  when the transfer is in favour of another occupant in that survey number or when the transfer is made with consent of all  the occupants  in the survey number.  The only point  which  has been.raised  before  us is whether the right  of  preemption given  by s. 174 of the Code is an unreasonable  restriction on  the  right  to  acquire, hold  or  dispose  of  property guaranteed  under Art. 19 (1) (f). It may be mentioned  that the  suit  was decreed and on appeal to the High  Court  the decree of the trial court was confirmed.  The appellant  had contended before the High Court that the law of  pre-emption had  been  rendered void as it was  inconsistent  with  Art. 19(1)  (f)  of the Constitution.  But  this  contention  was negatived on the basis of art earlier judgment of the Nagpur High Court in Ramchandra v. Janardan (1) by which the  right of pre-emption contained in Chap.  XIV of the Code was  held constitutional.    The   present   appeal   challenges   the correctness of the view taken in that case. (1)  A.I.R 955 Nag. 225. 744 Now it will be seen that the right of pre-emption granted by Chap.  XIV is of a very limited nature.  In the first  place it  is confined to occupants in a survey number.  A  "survey number"  means a portion of land formed into, or  recognised as, a survey number at the last preceding revenue survey  or subsequently recognised as such by the Deputy  Commissioner, in  respect of which the area and the land  revenue  payable are  separately  entered under an indicative number  in  the land records.  "Sub-division of a survey number" is  defined to mean a portion of a survey number in respect of which the area and the land revenue payable are separately entered  in the  land records under an indicative number subordinate  to that  of  the survey number of which it is  a  portion.   It appears  that  generally  survey numbers are  the  units  of assessment at the time of revenue settlement and are  formed under  s.  86 of the Code and no new numbers can  be  formed under  the  Rules  after the settlement  except  in  special cases, e. g., where land is taken up for public purposes for public  buildings, threshing floors etc., or waste  land  is given  out for cultivation, or survey numbers  exceeding  30 acres are divided into two or more survey numbers to  reduce the area; in all other cases only sub-divisions of a  survey number take place. subdivisions are formed under s. 88  read with the rules framed thereunder, and it is open to  amalga- mate two or more adjoining sub-divisions in a survey  number when  they  are held by the same occupants  under  the  same tenure.  On sub-division, the assessment of a survey  number is  distributed over its subdivisions as agreed between  the occupants,  It is clear therefore that the assessment  of  a survey  number is one and under s. 132 where there are  more than one occupant of a survey number, all such occupants are jointly  and  severally liable to the payment of  the  land- revenue assessed on it.  To begin with therefore the holders of a  745 survey number are really co-sharers.  For one reason or  the other,  if during the currency of the settlement  co-sharers decide   to  sub-divide  the  number,  the   assessment   is

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distributed amongst the subdivisions and each  sub-divisions then becomes a holding on being thus separately assessed  to land revenue.  The right of pre-emption under Chap.  XIV  is confined  only to the survey number which as we have pointed out  earlier  is one unit of assessment,  the  occupants  of which   are  co-sharers  and  are  jointly   and   severally responsible  for  the payment of land revenue.   In  effect, therefore  where, a survey number is sub-divided during  the currency  of a settlement and sub-divisions are formed  with separate  assessment of land-revenue on  such  subdivisions, the  holders of various sub-divisions, though they  are  not strictly co-sharers, are very much akin to co-sharers.   The pre-emption therefore as provided in r. 174 of Chap.  XIV is really  pre-emption  in favour of  co-sharers  strictly  so- called before there is any sub-division of a survey-  number and  after ’ such sub-division between person,;  who  though not  strictly co-sharers are still akin to  co-sharers.   It also appears from the Rules that a separate survey number is generally   expected  to  be  about  30  acres,  though   in particular  cases it may be larger.  Therefore, the  law  of pre-emption  in s. 174 of the Code applies to those who  are co-sharers  or  akin to co-sharers and results  in  consoli- dation  of holdings generally upto about thirty acres,  this being  the general extent of a survey number.  The right  of pre-emption  is  further  restricted  under  s.  184   which provides  that  no right of pre-emption would  arise  on  an exchange of land with the occupant of another survey number. In effect therefore the Code creates a right of  pre-emption in the holder of an interest in a survey number only when an occupant  having an interest in that survey number sells  it or  there  is foreclosure or a usufructury  mortgage,  or  a lease exceeding fifteen years is 746 created  in favour of a stranger subject to the  land  being unalienated    land   held   for   agricultural    purposes. Considering therefore the nature of the right created  under the Code, we have no hesitation in coming to the  conclusion that  this  right  is in reality in favour  of  a  co-sharer strictly  so-called or some one who is akin to a  co-sharer, and the reasons which we have already indicated when dealing with  the Punjab Act relating to co-sharers will apply  with full  force  to the right created under the Code  with  this addition  that  this being agricultural land there  will  be further advantage inasmuch as the right of pre-emption would result  in consolidation of holdings within a survey  number which  as we have said is generally of an extent  of  thirty acres.   We are therefore of opinion that the view taken  in Ramchandra  v.  Janardan (1) to the effect that the  law  of pre-emption  provided  in Chap.  XIV of the  Code  does  not infringe  Art. 19 (1)(f), is correct.  This being  the  only point urged before us in the appeal, we are of opinion  that the appeal must fail. We therefore allow C. A. 270 of 1955 with costs and  dismiss the  suit  for pre-emption.  No order as to  costs  in  this appeal C. A. 595 of 1960 and C.    A. 430 of 1958 are hereby dismissed with costs. SARKAR,  J.-These three appeals arise out of suits for  pre- emption  of properties.  Broadly put, the question  in  each appeal is whether the law creating the right of  pre-emption with  which  it  is concerned, is  void  as  offending  Art. 19(1)(f)  of the Constitution.  One of the appeals  involves also  the question whether the law is invalid  as  offending Art. 14 of the Constitution. The  right of pre-emption  challenged is in each case  based on a statute.  So there are three different statutes to deal

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with.   Though  some of the features of these  statutes  are substantially (1)  A.I.R 1954 Nag. 225.                             747 common, there are some others which are not so.  Each appeal has therefore to be considered independently in reference to its own statute.  It may however be observed here that these statutes are all pre-Constitution laws but the sale on which the right of pre-emption was claimed had taken place in each case after the Constitution had come into force. We  shall first take Civil Appeal No. 270 of 1955.  That  is concerned  with  the Rewa State Preemption  Act,  1946.   We shall be concerned with s.    10  of  the Act  which  is  in these terms:               S.10  Persons of the following  classes  shall               have a right of pre-emption:               (1)   Any person who is a co-sharer or partner               in the property sold or foreclosed:               (2)   Any  person  who  owns  any   immoveable               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. In  this  case,  pre-emption was decreed or  the  ground  of ownership  of adjoining property but as both  the  purchaser and  the pre-emptor held lands adjoining the property  sold, the  pre-emption  decree was passed in favour  of  the  pre- emptor  under the proviso to s. 10 as he was related to  the vendor while the purchaser was not so related. 748 The question that arises in this case is whether a right  of pre-emption  based  on vicinage offends Art.  19(1)(f).   On this question there has been a divergence of opinion in  the High  Courts.  It would not be profitable to  discuss  these decisions  in detail because in what follows we  shall  deal with the various points considered in them.  It may  however be  stated that the High Courts of Rajasthan Madhya  Bharat, Vindhya Pradesh and Hyderabad have taken the view that  such a right of pre-emption offends Art. 19: see Panch Gujar Gaur Brahmins  v.  Amarsingh(1), Babulal v. Gowardhan.  das  (2), Sewalal Ghanshyam v. Param Lalanju (3), (this dealt with the Act  with which we are dealing), and Moti Bai v.  Kand  Kari Channaya  (4).  On the other hand the High Court  of  Punjab has  held  that the right of pre-emption based  on  vicinage does  not  offened  Art. 19(1)(f): see Sardha  Ram  v:  Haji Abdul(5).   It may perhaps, be said that the High  Court  of Nagpur  has  also taken the same view as the High  Court  of Punjab: see Ramchandra Krishinaji Dhagale v. Janardan Krishnappa Marwar(6 ) . One  argument  advanced on behalf of  the  preemptor,  which applies  to  all  the appeals, may  be  noticed  here.   Our attention  was drawn to Shri Audh Behari Singh  v.  Gajadhar Jaipuria(7) where it is stated that "In our opinion the  law of preemption creates a right which attaches to the property and  on  that footing only it can be  enforced  against  the purchaser".  It was said that since the right of pre-emption is attached to property it is an incident on which  property is  held and therefore it is not a restriction on the  right to  hold property.  On behalf of the purchaser it  was  said

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that  even so it would be a restriction because a  right  to hold property existed independently of the law of preemption and this laweffected adversely the right to      (1) A.I.R. (1954) Raj, 100(2) A.I.R. (1956) M.B I.      (3) A.I.R. (1956) V.P. 9.(4) A.I.R. (1954) Hyd. 161.      (5) A.I.R. (1960) Punj 196(6) A.I.R. (1955) Nag. 225,       (7) (1955) 1 S.C.R. 70, 80.                             749 property.  As at present advised, we are unable to say  that the   contention  of  the  purchaser  is  entirely   without foundation.  In the view however that we have taken of these cases,  we think it unnecessary to pronounce finally on  the point so raised.  We shall proceed on the basis that even if the  law of pre-emption creates ’a right which  attached  to property,  it  may  amount to a  restriction  on  the  right guaranteed by Art. 19(1)(f), Article  19  (1) (f) of the Constitution states  that  every citizen  shall have the right "to acquire, hold and  dispose of  property".   Clause  (5)  of  this  Article  says   that reasonable restrictions on this right may be imposed by  law in  the interests of the general public.  There is no  doubt that  a law of pre-emption does impose a restriction on  the rights  mentioned  in Art. 19 (1) (f).  The  extent  of  the restriction  will be considered by us in more detail  later. The question is whether the restriction is reasonable and in the  interests  of  the general  public.   In  deciding  the question of reasonableness, we think, we have to balance the disadvantage  to the person injuriously affected by the  law and  the  advantage  conferred by it  on  the  community  in general.   If  we  find that  the  advantage  outweighs  the disadvantage,  then  we would be justified  in  holding  the restriction  imposed  by  the  law  to  be  reasonable.   In considering  the  question  of  reasonableness,  we  do  not conceive it any part of our duty as a Court to go into ques- tions of policy, or to ask whether if it was for us to  make the  law  how we would have made it. Once we find  that  the restriction  imposed by the law is reasonable, we think,  we are bound to uphold it. The  first thing that we wish to observe is that the  result of a law of pre-emption is not that every sale is likely  to be  preempted.   One  does not exercise the  right  of  pre- emption  for  the fun of it nor does so out  of  perversity. One has to have 750 money to be able to exercise that right.  It can be presumed that  given the money the right will be exercised only  when it would be decidedly advantageous to do so.  We think  that it  may  therefore  be fairly said that the  right  of  pre- emption  will  not be exercised in a very  large  number  of cases.   The  restriction imposed by it will  not  therefore affect many.  This we think is a legitimate consideration in judging  the reasonableness of a restriction imposed by  the law of pre-emption. There is one other general consideration to which we propose now to refer.  In large parts of this country there has been for a long time a customary right of pre-emption including a right  to  preempt on the ground of  vicinage.   Before  the Constitution  that custom had been upheld by courts of  law. In Audh Behari Singh’s case (1), this court itself upheld  a custom  giving  a  right of pre-emption  on  the  ground  of vicinage.   The Courts could not have upheld  the  customary right  of  pre-emption  unless they held the  custom  to  be reasonable.   It  is  well  known that  "A  custom  must  be reasonable.   If  it is against reason it has  no  force  in law.":  see Halsbury’s Laws of England, 3rd ed. vol.  11  p.

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162. In Tyson v. Smith, (2) Tindal, C.J., observed "Nor is a custom  unreasonable  because  it  is  prejudicial  to   the interests of a private man, if it be for the benefit of  the commonwealth".   These words, it will be noticed,  are  very near to the words used in cl. (5) of Art. 19.  We, then come to  this:  before the Constitution various courts  in  India held  the  customary right of pre-emption on the  ground  of vicinage to be a reasonable custom, that is, in the  opinion of the courts the restriction imposed by it was a reasonable restriction.   We  are  unable to  discover  why  after  the Constitution,  the  law  imposing  a  similar   restriction, customary  or otherwise, should be held to be  unreasonable. There has not been any such (1)  [1955] 1 S.C.R., 70, 80. (2)  [1938] 9 Ad. & Ed, 406,42 1.  751. vast  change  in  the social or economic  structure  of  the country  which  would ’justify the view that  a  restriction which was reasonable before January 26, 1950, has since then become  unreasonable.   It  is true that  courts  in  Madras refused  to  apply  the Mahomedan Law of  pre-emption  as  a matter  of justice, equity and good conscience.  But we  are not concerned with Mahomedan Law or with justice, equity and good-conscience.   Even  in Madras a local custom  giving  a right of pre-emption had been upheld:   see          Tulla’s Mahomedan Law; 15th ed. p. 202.     The  restriction  imposed by the law of  preemption  has different aspects when considered from the point of view  of a vender and a vendee.  We will first take up the case of  a vendor.   We  think  it will not be wrong to  say  that  the reports  show  that  a  vendor  has  rarely  come  to  court complaining  that  the  law  of  pre-emption  has  cast   an unreasonable burden on his right to dispose of property. Now  the  Rewa  Act provides by s. 12  that  when  a  person proposes  to sell immovable property he may give  notice  of his  intention to do so to the person or persons having  the right  of pre-emption under the Act in respect of  the  sale and of the price at which he is willing to sell.  Section 13 provides  that ’any person having the right  of  pre-emption shall lose such right unless within one month of the  notice be pays or tenders the price mentioned in it to the  vendor. The result of these provisions is that the vendor can unless perhaps where he was selling for an unreasonably high price, ascertain  before hand whether any person entitled  to  pre- empt is likely to exercise his right.  If he finds that such persons do not insist on their right, then he can sell it to anyone  he  likes and’ at any price.  It may  reasonably  be expected  that there will be many cases in which  this  will happen.  To a person having a right 752 of pre-emption, he will be compelled to sell at a reasonable price. Thus  the  Rewa law of pre-emption imposes on a  vendor  two restrictions.   The first, is that he may be prevented  from selling  property at any price he likes, and the  second  is that  he  can-not sell it to anyone of his choice.  Now  the first restriction is clearly a reasonable restriction..  One cannot complain if he is made to accept a fair market pi-ice for  the property he is willing to sell and is  deprived  of the  chance of extracting an unconscionable price.   Such  a measure would control prices and check speculation in  land. It  would help to stabilize the economy of the country.   It would prevent a wealthy man with his resources in money from outbidding a poorer man in respect of a property which is of great advantage to the poorer man to have by reason of  it,%

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vicinage with property he holds and which may not have  that value for the richer man.  It was contended that the law  of preemption  had  the  effect  of  amassing  wealth  in   one ownership.   For  the reasons just mentioned,  we  think  it really  prevents  the richer man from  acquiring  properties when  it  is to the advantage of a poorer man  to  have  the same.   In so far as the law prevents a vendor from  selling his property at an exorbitant price it cannot, in our  view, be said to impose an unreasonable restriction on him. Then,  as  we have said, the law of pre-emption  prevents  a vendor  from  selling his property to anyone he  likes.   We cannot imagine this to be a great deprivation.  Really,  the freedom  to sell to anyone has perhaps no more value than  a sentimental  one. As against this the advantage accruing  to the  neighbouring  owner is that he is able to  enlarge  the property  previously held by him.  We think  that  balancing the  two  sides the scale dips much in favour  of  the  pre- emptor.  There are also other reasons for this view which we shall presently state.                             753 It is said that one of the disadvantages of the law of  pre- emption  is that it gives rise to a lot of litigation.   We, do  not think that this is a legitimate argument.   The  law does  not necessarily gives rise to litigation.   Litigation arises  because  through cupidity people want to  evade  the law.  In that way, a number of other laws may be thought  of which cause litigation.  But the defect is not in law but in human  nature.   We are therefore unable to agree  that  the fact that litigation may be caused either because the law of pre-emption is sought to be enforced or to be evaded, can be a  reason  to  say that the restriction  imposed  by  it  is unreasonable.  We also think that in deciding whether a  law imposes  unreasonable restrictions’ the fact that it  easily gives   rise   to   litigation  is   a   wholly   irrelevant consideration.  Assuming that the law imposes a  restriction if  it  did not, no question of the  reasonableness  of  the restriction would of course arise-that restriction would not become  unreasonable if it was not otherwise so because  the law caused a great deal of litigation. Now  we  come  to  the  case of  a  purchaser.  it  is  well understood  that the right of pre-emption is a right  to  be substituted  in  place of the purchaser.  That is  the  view that was accepted in Audh Behari Singh’s case(1).  So far as the  Rewa Act is concerned, s. 4(i) expressly provides  that the right of preemption is a right to be substituted in  the place  of the purchaser.  It would, therefore,  follow  that the only restriction put on the purchaser is on his right to acquire  a particular property.  The law of preemption  does not restrict his right to hold property.  If he has acquired property  in  compliance with the law of  pre-emption,  then there is nothing to prevent him from holding it for as  long as he likes. The question then is whether the restriction (1)  (1955) S.C.R.70,80 754 on  the  right to acquire property is unreasonable.   Is  it unreasonable to say that one shall not a particular property if  the  adjoining  owner wants it?  It is  not  as  if  the purchaser  is prevented from acquiring any property.   There must  be  many other properties more or  less  equally  good which  he  is free to acquire.  As we have  earlier  pointed out,  there  would not be many cases in which the  right  of preemption   would   be  exercised   with   the   consequent restriction  on a stranger’s right to purchase.  Now if  the property  is  agricultural land there is no doubt  that  the

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right  of  pre-emption  on grounds  of  vicinage  will  help consolidation  of  holdings.  We think  that  balancing  the advantages  of  the  consolidation  of  holdings  with   the disadvantages  resulting to a ,stranger by  the  restriction imposed on his right of acquiring that property, there is no doubt that the disadvantages are of small consequence.   The advantages  arising from the consolidation  of  agricultural holdings  will  be discussed in the last case that  we  will consider and which comes from Berar. The  Rewa Act however is not confined to agricultural  land. It  creates a right of pre-emption in other  property  also. Let  us  consider the case of house property in  a  town  or village.   In a town or village the Indian way of  life  has been to live in compact communities.  There is no doubt that such  living has great advantages.  It is true that  due  to economic reasons it is not always possible nowadays for many to  have the comfort of living in compact communities.   But the  fact that economic conditions are breaking  up  compact communities  does not show that living in  such  communities has  not  its advantages.  It seems to us that  such  living would help to maintain the homogeneity, Comfort and peace of the  people.   It is common human experience  that  property leads  to disputes concerning boundaries, easement and  con- cerning  divers  other  rights  connected  with  it.    Also disputes arise because of different ways of living.                             755 Now  most  of  these disputes would be  with  the  adjoining owners.   The  right of pre-emption based on the  ground  of vicinage  would  help to avoid these  disputes  coming  into existence.   Again,  it would be a great  discomfort  for  a number of people living together for years to have to accept among  themselves  an outsider who may not, be able  to  fit himself  into that community or may even be  an  undesirable person.  Furthermore,  if a person is  given  preference  in acquiring neighbouring property it would help him better  to manage his properties.  Privacy of the home would be  better maintained.    Against   all  these  advantages   the   only disadvantage  that the purchaser suffers is that  he  cannot acquire  a particular property.  It will often  be  possible for him to get another equally good property.  It cannot  be said  that  if  between to such competing  persons  the  law favour  one  who  owns neighbouring  property,  the  law  is putting unreasonable restriction on the other person. In none of the reported cases has it yet been held that  the right  of  pre-emption  given  to  a  co-sharer  imposes  an unreable restriction on the purchaser.  It seems to us  that it  would  be  impossible to take that  view.   A  co-sharer increases  his holding if he is given the preference to  buy the  land.   He of course also prevants  an  outsider  being thrust  into joint ownership with him and this is  the  only difference  between  his case and the case of  an  adjoining owner.   The  difference is not such as would  in  principle lead  to different conclusions as to the  reasonableness  of the  restriction in the two cases.  A co-sharer it’ he  does not  like his new co-sharer can always separate  his  share. It  has  not however been held that for this  reason  a  law giving   a  co-sharer  a  right  of  pre-emption   puts   an unreasonable  restriction  on  an  other  persons  right  to acquire   property.   We  think,  therefore,  on  the   same principle  it  has to be held that a law giving a  right  of pre-emption on 756 the  ground of vicinage also imposes a restriction which  is reasonable. One  of  the advantages of the law of  preemption  based  on

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vicinage earlier noticed is the preservation of the  privacy of homes.  In regard to this, it was said that purdah system has  disappeared and therefore there is no need  to  protect it.  It may be that purdah has disappeared but it cannot  be said that the privacy of the home is a thing which is of  no value nowadays.  It is this that the law of pre-emption will protect and therefore be of advantage to the community.   We think it wrong to imagine that privacy of a home is of value only to the people observing purdah. Then it is said that living 1n compact communities has  also disappeared  and  people now live in flats.  But we  do  not think  that it can be suggested that, living in  communities has  not  its  advantages or living in  flats  is  an  ideal system.   There are therefore no arguments against the  view that living in compact and homogeneous communities is  still desirable  and has still its advantages which  perhaps  will always remain. It  is also said that the restriction imposed by the law  of pre-emption   is   unreasonable   because   it    encourages discrimination on the ground of religion, race and caste and this is what Art. 15 of the Constitution forbids.  We do not think that it is a reasonable reading of the Constitution to say  that it forbids people of one race, religion  or  caste from living together.  Furthermore, compact communities  are not  always  of  the  same race,  religion  or  caste.   The advantage  is not due to identity of caste etc. but  to  the identity of thought and way of living and ties generated  by long  familiarity with each other and the families  of  each other.   For all these reasons a restriction imposed by  the law of pre-emption based on vicinage is, in our view, a                             757 reasonable  restriction on the right to acquire and  dispose of property. Then  it  was argued that when a property  is  purchased  in exercise  of the right of pre-emption, it will often  happen that that property will be let out to a stranger and so  the objective  of  living  in compact communities  will  not  be attained  in many cases.  This may be so in some  oases  but the  landlord  when  the occasion arises,  can  choose  that stranger.   He further has some control over the tenant.  He will have no property dispute with the tenant except such as might arise out of tenancy laws.  If the tenant is found  to be undesirable, he can be removed.  All that this contention comes  to is that the law of pre-emption may not  completely guarantee the advantages which it is designed to create, but there  is no doubt that it does guarantee a very large  part of  it and it would be incorrect to say that  it  guarantees none. A further question remains in this case. it is said that  s. 10  of the Rewa Act is bad in that it gives  a  preferential right  to  pre-empt  on the  basis  of  relationship.   This however  does not seem to us to be a correct way of  reading the  statue.   What it aims at is to give a  right  of  pre- emption  on  the  ground of vicinage and  the  other  ground mentioned  in the section.  But then it is unavoidable  that there may be various persons entitled as co-owners or owners of  adjoining properties to the right of  pre-emption  under the  section.   It  has to be remembered  that  we  are  now proceeding on the basis that the right imposes a  reasonable restriction.  In order therefore that a statute legally made giving  the  right  of  pre-emption  may  not  be   rendered infructuous in certain circumstances, an order of preference among  the would be pre-emptors has to be devised.  This  is done by the proviso to s. 10 of the Rewa 758

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Act  by laying down that a person nearer in relationship  to the  vendor  will have a preferential right  of  pre-emption over  others.The proviso does not purport to create a  right of  pre-emption  only  on the ground  of  relationship.   It solves  a  problem  arising out of a  right  of  pre-emption legitimately  granted  on  the  ground  of  co-ownership  or vicinage.It  is a corollary to the main right.  If the  main right,  is  good, a provision enacted to prevent  its  being defeated would equally be good. The  result  is that s. 10 of the Rewa Act which  gives  the right  of  pre-emption  on the ground of  vicinage  must  be declared  to be a perfectly valid statutory provision  which does not offend Art. 19(1)(f) of the Constitution and so  is the  proviso to that section which is really a part  of  it. That  disposes  of Civil Appeal No. 270 of 1955.   We  would therefore dismiss the appeal. We next come to Civil Appeal No. 595 of 1960 which  concerns the  Punjab Pre-emption Act of 1913.  The property  involved in  this case is a house situated in the city of Old  Delhi. Section  16 of the Punjab Act which governs the property  in dispute, is in these terms :               S.    16. The right of pre-emption in  respect               of urban immovable property shall vest,-               firstly,  in the co-sharers 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  proper.               ties, in the owners of such properties ;               fourthly, where the sale is of property having               a common entrance from the street                                    759               with  other properties, in the owners of  such               properties               fifthly,  where  the  sale is  of  a  servient               property,  in the owners of the dominant  pro-               perty, and vice versa ;               sixthly,  in  the persons  who  own  immovable               property contiguous to the property sold. The Punjab Act.. like the Rewa Act, contains provisions  for giving  notice  of an intended sale to the person  having  a right of pre-emption, for loss of right of pre-emption  when action  is not taken to purchase in terms of the notice  and for fixation of a fair price by the court : see ss. 19,  20, 22,  25  and 27 of the Punjab Pre-emption Act.  As  we  have said in the Rewa case, provisions of this kind help to relax the severity of the restriction imposed on the seller. The  pre-emptor in this case based his claim on  the  first, third,  fourth and sixth grounds mentioned in  the  section. The  High  Court held that the section did not  offend  Art. 19(1)(f) with regard to the first, third and fourth  grounds but did so with regard to the sixth ground.  The judgment of the  High Court is reported in A.I.R. (1958) Punj. 44.   The view  there taken in so far as it concerns the sixth  ground in  the  section is against the Full Bench decision  of  the same  High  Court  in Uttam Singh v. Kartar  Singh  (1)  and Sardharam  v. Haji Abdul (2) the latter of  which  expressly overruled that view. It is interesting to note that under s. 7 of the Punjab  Act a  right  of  pre-emption  in  respect  of  urban  immovable property in any town, that is, the right contemplated by  s. 16,  shall exist if a custom of pre-emption had  existed  in such town at the commencement of the Act and not otherwise.

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(1) A.I.R. (1954) Punj. 55. (2) AIR 1960 Pun. 196, 760 It  is  plain that in the city of Delhi the custom  of  pre- emption had so prevailed; if it had not, then of course  the point  would have been taken and the case thereupon  decided against  the pre-emptor.  Custom is a question of fact,  and on the state of the records in this case we must proceed  on the basis that a custom of pre-emption had existed in Delhi. Now  that  custom,  if it had prevailed must  have  done  so because it was considered to be a reasonable rule inspite of the  restriction  that  it  imposed on  the  vendor  or  the purchaser.   We  have earlier said that the existence  of  a customary   right   of  pre-emption   indicates   that   the restriction imposed by it is reasonable.  That view  applies more strongly to. the present case because here in the  very area with which we are concerned that custom did exist. The right of pre-emption based on vicinage mentioned in  the sixth ground in s. 16 hat; already been dealt with by us  in the Rewa case.  For the reasons stated, there, we hold  this provision in s.     16 to be a valid piece of legislation. We have now to deal with the other grounds in s. 16 referred to  earlier.  The first confers t right of pre-emption on  a co-,sharer  in  a  property.  We feel no doubt  that  a  law giving such a right imposes a reasonable restriction on  the right  conferred  by  Art.  19(1)(f).   If  an  outsider  is introduced  as a co-sharer in a property, that is likely  to make common management inconvenient and thereby destroy  the benefits  of  ownership of the property to a  large  extent. Property  cannot be managed profitably unless one policy  is followed.   If there are more than one owner of a  property, it is essential for the profitable enjoyment of it that they should  be  able  to work in union.   Therefore  if  by  the operation  of the law of pre-emption based  on  co-ownership the property eventually comes to be vested in a single  hand that  would be a great advantage to the owner.  Such  a  law being for the benefit of all  761 owners  would  surely  be in the interests  of  the  general public.  Till the property comes to be vested in. one, owner it  would have remained in the hands of two or  more  people who  have been owning it for years and have been getting  on with  each  other smoothly, for otherwise  they  would  have partitioned it.  In’ such a case if one of the joint  owners goes  out  and  in his place the remaining  joint  owner  or owners have to accept a stranger, a good deal of  irritation and  mismanagement  may be reasonably apprehended.   If  the property  owned  is  a residential house-and  s.16  will  be largely concerned with such properties-the introduction of a stranger into it would lead to an undesirable situation  and often  and  in disaster.  Those are the  advantages  arising from  a  law  of pre-emption  based  on  co-ownership.   The disadvantages  are that the selling co-owner cannot sell  it to  anyone  he likes or for an extortionate price,  and  the purchaser  is  deprived  of owning  an  undivided  share  in property.   Neither  of  these seems to us  to  be  a  great deprivation.   In neither case is the disadvantage  suffered great  as, compared to the advantage accruing to the  remai- ning  joint  owner.   Therefore, it seems  to  us  that  the restriction  imposed on the right to dispose of  or  acquire properties  imposed by the first ground. under s. 16 of  the Punjab Act is a reasonable restriction. The right based on the third and fourth grounds mentioned in the  section  also seems to us unobjectionable.   The  third ground gives to the owner of property a right of pre-emption

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when another property having a common staircase with his  is sold.  If a number of properties have a common staircase and one  is  sold,  it would be most  inconvenient  and  greatly disadvantageous  to the owners of the unsold  properties  if they  cannot prevent a stranger from acquiring  the  portion sold and thereby obtaining a right to the common user of the staircase with them.  That would in a large 762 number  of cases be more or less admitting a  stranger  into their houses.  The disadvantage arising from such a state of affairs  is clearly much more than the advantage that  would arise  to the purchaser by the acquisition of the  property. The  fourth ground gives a right of pre-emption when one  of several properties having a common entrance from the  street is sold.  If he street is of course the public street  which is  common  to all.  In order that this  ground  may  apply, there  has to be a common entrance from such a street  to  a number of properties.  This ground apparently contemplates a case of a passage leading from a public street which is com- mon to all the owners of properties situate on that passage. This  ground therefore deals with owners of  properties  who have  to  share a common passage.  People  living  in  these houses  would  naturally  from  a  very  compact  community. Indeed  very  often they would be living like  relatives  or members of a family.  A law which gives them a right to  buy one of these properties when it is sold to a stranger cannot be said to impose an unreasonable restriction on anyone.  As in the last case, the advantage accruing from such a law  to the  person  desiring  to pre-empt would  far  outweigh  the disadvantage   occasioned  either  to  the  vendor  or   the purchaser. The  learned counsel for the appellant referred  to  various Acts  which  have  gradually abolished  the  right  of  pre- emption.  He pointed out that by Act X of 1960 of the Punjab Legislature  s. 16 has in fact been repealed as a whole  and has been substituted by a provision creating a right only in a  tenant  to  pre-empt the property held by  him  when  the landlord  desires to sell it.  Punjab Act X of 1960  however has  not  been extended to Delhi and here  the  Punjab  Pre- emption  Act of 1913, the Act with which we  are  concerned, still   applies.   All  that  these  subsequent  pieces   of legislation show is that the Legislature has thought it  fit to  abolish certain rights of pre-emption in various  oases. But this                             763 cannot   be  used  as  an  argument  to  contend  that   the Legislature considers that the law of pre-emption imposes an unreasonable  restriction’ on the rights mentioned  in  Art. 19(1)(f).  If it were so, then it has to be said that in  so far as the Legislature has not thought it fit to repeal  the law  of  pre-emption  as it exists in  Delhi,  it  does  not consider  that  law to impose an  unreasonable  restriction. Arguments   of   this  kind  do  not   lead   us   anywhere. Furthermore,   we  have  to  decide  the  question  of   the reasonableness of the restriction for ourselves and whatever opinion a legislature expresses on the matter is not of much relevance for this purpose. Lastly we have to deal with the point that s.     16 of  the Act offends Art. 14 of the Constitution. It  was  said  that it offended that article because there was no right of  pre- emption  in regard to agriculture land and the law  was  not available outside urban areas of Delhi and that it  exempted from  its  operation shops and katras.  Now with  regard  to agricultural  land,  it clearly forms a  distinct  class  by itself and so do properties outside urban areas.  Properties

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in  urban areas have their own peculiar  problems.   Further more,  there  is  not likely to be  much  agricultural  land within the Union territories of Delhi.  With regard to shops and  katras, no doubt s. 5 of the Act exempts them from  its operation.   But  these  also  form  a  clam  by  themselves different  from  other  properties.  A  shop  of  course  is essentially  a business premises.  What a katra is,  in  not defined  in the Act.  But it would appear that  the  primary meaning  of katra is an enclosure and the secondary  meaning is  market: see Karim Ahmed v. Rehmat Alahi (1).   It  would therefore  be safe to proceed on the basis that a  katra  is principally a business promises with. in an enclosure though no doubt it also contains residential accommodation.  It can be assumed that the (1)  A. 1. R. (1946) Lah. 433. 764 residential accommodation provided is for persons working in the shops in the katra.  Now clearly in business one has  to work  and  mix  with  strangers.  One  has  to  welcome  and associate  with, completely unknown persons who do not  live with the persons doing the business.  In order that business premises  may cater to the needs of the community for  which they  exist, they have to be open to all.  To such  premises no  question of any advantage flowing from community  living arises.   They are generally properties of great value.   It seems  to us that they  can therefore be put in  a  separate class.   They do not need the protection of the law of  pre- emption  in the same way as other properties would do.   For these  reasons  we do not think that s. 16 can  be  said  to violate Art. 14 of the Constitution. In  the  result we hold that the first,  third,  fourth  and sixth  grounds, on which a right of pre-emption is based  by s.  16 of the Punjab Act, are valid pieces  of  legislation. Was would therefore dismiss this appeal with costs. We  come now to the last appeal, that is, Civil  Appeal  No. 430  of 1958.  It concerns the Berar Land.  Revenue Code  of 1928.   Chapter 14 of this Code creates certain  rights  ’of pre-emption to one of which we shall presently refer.   That chapter  consists  of as. 173 to 187.  This chapter  in  the Code, like the two Acts we have already dealt with, contains provisions  about notice of an intended sale, loss of  right to  pre-empt  in  case  the notice is  not  acted  upon  and fixation  of a fair price.  These are contained in as.  176, 180  and 182.  As we have earlier stated,  these  provisions very largely remove the rigour of the restriction imposed by the  right  of pre-emption on vendors  of  properties.   The right is confined to unalienated lands held for agricultural purposes  :  [s. 174(2)].  It arises in the case of  a  sale when one occupant                             765 in a Survey Number proposes to sell the whole or any portion of  his  interest to a stranger and the right  is  given  to other  occupants in the same Survey-Number : s. 176  and  s. 182.   Now a Survey Number is defined as a portion  of  land recognised as such at the revenue survey in respect of which the  area  and land revenue payable are  separately  entered under an indicative number’ in the land records : s.  2(13). Sub-division of a survey number means. portion of a  survey- number  in  respect of which the area and the  land  revenue payably are separately entered in the land records under  an indicative  number subordinate to that of the  survey-number of  which it is the portion : s.2(12). Section 184  provides that  when  an  occupant in a  survey-number  exchanges  his interest in it for laud elsewhere, then this exchange  would not  create any right of pre-emption in favour of the  other

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persons interested in the survey-number, part of or interest in,  which  is  exchanged.  The  ,substance  of  the  matter therefore  is  that the Berar Code creates a right  of  pre- emption  in the holder of interest in a  survey-number  only when anybody having an interests in any land in that survey- number  sells  it for a money consideration  to  a  stranger provided that the interest sold is in unalienated land  held for agriculture purpose.    In the present case, the vendor owned sub. division No. 1 in  survey-number  285  and the  respondents  jointly  owned subdivision  No.  2 in the same survey-number  and  in  that right claimed to pre-empt the sale by the vendor.  There  is further no controversy that the lands were unalienated  land held for agriculture purpose. Mr. Sovani appearing for the respondents mid that under  the Berar Code of 1928 and under the previous land laws which it replaced,  an  occupant  is one who obtains  land  from  the Government on the terms mentioned in the Code and that it is 766 only against such an occupant that a right of preemption  is created by that Code.  He therefore contended that the right to  property  being  created on the term that  it  would  be liable to pre-emption, it was not a case of restriction  but one  of the nature of the property itself and  therefore  no question  of  infringement of Art. 19(1)(f)  arises  by  the exercise  of that right.  As in our opinion the  respondents should  succeed  in  this  appeal  for  the  reasons  to  be presently discussed, we think it unnecessary to pronounce on this  contention  of  Mr.   Sovani.   We  have  besides   no materials  to show as to when the right of ownership in  the property  involved in this case was first created.   It  may have  been  created under a law other than the Code  or  its predecessors.  In that case Mr. Sovani’s argument would lose its  principle force.  Further we have Dot all  the  earlier land laws of Berar before us.  It would not be right on  the materials now before us to investigate and pronounce on  the question raised by Mr. Sovani.     It  is clear from what we have earlier stated  that  the lands  included in one survey-number are contiguous.  It  is only  when an interest in such lands is sold that under  the Berar  Code a right of pre-emption arises.  It would  follow inevitably  that  the result of the exercise of  this  right would  be  to effect a consolidation of  holdings.   Such  a consolidation would undoubtedly be of a great benefit to the agriculturist and to the community as a whole.  The evils of fregmentation  of agricultural holdings in our  country  are too well known to need detailed discussion. ,Shortly put  it would  help an agriculturist greatly if he could extend  his holdings  thereby making agricultural  operation  economical and  more  productive  with the  resultant  benefit  to  the country.  A law which therefore tends towards  consolidation has great advantages.                   767 Ramchandra   Krishnaji  Dhagale  v.   Janardhan   Krishnappa Marwar(1)  was a case concerning preemption under the  Berar Code and was heard by a Full Bench of the Nagpur High Court. The Bench presided over by the present Chief Justice of this Court  found no difficulty in upholding the validity of  the provisions  in that Code creating the right of  pre-emption. With  regard to the question of consolidation,  Kaushalendra Rao J. observed at p. 232.               "It is not without significance that while  in               a  part  of the  State-the  Central  Provinces               special  legislation had to be undertaken  for               checking the evil of fragmentation by enacting

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             a measure like the Central Provinces  Consoli-               dation of the Holdings Act (Act VIII, 1928) no               such  necessity has so far been felt in  Berar               presumably because of the operation of the law               of pre-emption." This  observation undoubtedly is of great  authority  coming from  a  Judge of eminence familiar with the  conditions  in Berar.  It has not even been suggested that the  observation was  not  justified.   But  it was  said  that  the  present tendency of legislation is fix a ceiling as to land that can be  held by a person and that this shows that  consolidation of  holdings  is  no longer considered  desirable.   We  are entirely  unable to agree with this view.  The  idea  behind fixing a ceiling for holding of land is to make an equitable distribution  of the available land possible.  But  this  is subject to the idea that each holding should be  economical. In  other words, the law as to ceiling does  not  discourage consolidation  of holdings but is intended only  to  prevent undue grabbing of lands by persons with the necessary  means to  do the game.  Section 184 by providing that no right  of pre  emption  would arise on the exchange of  lands  clearly indicates that thy object of the Berar Cod (1)  A.I.R. (1955) Nag 225. 768 in  providing  for the right of pre-emption  is  to  achieve consolidation  of  holdings.   We feel  no  doubt  that  the benefits  to  arise out of consolidation  far  outweigh  the disadvantages  caused  by the restriction put by it  on  the right to property guaranteed by Art. 19(1)(f). We, therefore, come to the conclusion that the provisions in Chapter  14 of the Berar Land Revenue Code creating a  right of  pre-emption  on  the sale of land are  valid  and  fully within  the Constitution.  This appeal therefore  must  also fail and we would dismiss it with costs. By  COURT : In accordance with the opinion of  the  majority Civil  Appeal  No. 270 of 1955 is allowed ; no order  as  to costs. C.   A.  No. 27 of 1955 allowed.  C. A. No. 430 of 1958  and C. A. No.595 of 1960 dismissed.  769