http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: SANT RAM AND ORS.

       Vs.

RESPONDENT: LABH SINGH AND ORS.

DATE OF JUDGMENT: 15/04/1964

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. GUPTA, K.C. DAS

CITATION:  1965 AIR  166            1964 SCR  (7) 745  CITATOR INFO :  R          1992 SC 248  (59,61)

ACT: Pre-emption-Based  on custom-Whether infringes  Constitution of India-"Laws in force"-Whether includes custom and  usage- Constitution of India, Arts. 13, 19.

HEADNOTE: In a suit filed by the respondent, the Munsif though holding that  there  was  a general custom  of  pre-emption  in  the locality  and that the respondent had a right  to  pre-empt, under  that custom, dismissed the suit because the sale  did not include a strip of land 3 feet 6 inches wide between the respondent’s house and the property sold.  The  respondent’s appeal  was allowed by the District Judge.   The  appellants appealed to the High Court which was unsuccessful because of the  answer of the Division Bench to which the question  was referred.  The Division Bench held that the law relating  to pre-emption  on  the ground of vicinage was  saved  by  Art. 19(5)  and was not void under Art. 13 of  the  Constitution. The  appellant relied on the decision of this Court in  Bhau Ram  v. Baijnath and claimed that pre-emption on the  ground of vicinage could not be claimed.  The respondents in  reply contended  (a)  that Bhau Ram’s case was  concerned  with  a legislative  measure  whereas the present  case  arose  from custom and was thus distinguishable and (b) that Art.  13(1) dealt  with "all laws in force" and custom was not  included in  the  definition  of the phrase "laws in  force"  in  cl. (3)(b) of Art. 13. Held:  (i) In so far as statute law is concerned Bhau  Ram’s case decides that a law of pre-emption based on vicinage  is void.  The reasons given by this Court to hold  statute  law void apply equally to a custom. Bhau  Ram v. B. Baijnath Singh, [1962] Supp. 3  S.C.R.  724, followed. Digambar Singh v. Ahmad Said Khan, L.R. 42 I.A. 10, referred to. (ii) Custom and usage having in the territory of India the force of  law  are included in the expression "all  laws  in force".

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 299 of  1964. Appeal from the judgment and order dated September 26,  1961 of  the  Allahabad High Court in Second Appeal  No.  620  of 1957. J.   P. Goyal, for the appellants. B.   C.  Misra, for the respondent No. 1. April 15, 1964.  The judgment of the Court was delivered by HIDAYATULLAH, J.-In this appeal by certificate from the High Court of Judicature at Allahabad the appellants are the four original  defendants in a suit for pre-emption filed by  the first  respondent.  Kaiseri Begam (respondent No. 2) sold  a plot and two houses in mohalla Gher Abdul Rahman Khan, 757 Qasba  Milak, Tehsil Milak, District Rampur, to  the  appel- lants on December 4, 1953.  The first respondent Labh  Singh owned  the adjacent house and he claimed pre-emption on  the ground of vicinage after making the usual demands.  The suit was  filed by Labh Singh in the court of Munsif, Rampur  who by his judgment dated September 25, 1955 held that there was a  general custom of pre-emption in the town of  Milak.   He also  held that Labh Singh was entitled to preempt  and  had performed  the  Talabs.   He, however,  dismissed  the  suit because  the sale did not include a strip of land 3  feet  6 inches  wide  between Labh Singh’s house  and  the  property sold.  He made no order about costs.  There was an appeal by Labh  Singh  and  the  present  appellants  objected.    The District Judge, Rampur allowed the appeal and dismissed  the cross-objections.  The appellants then filed a second appeal in the High Court of Allahabad.  Mr. Justice V. D. Bhargava, who  heard the appeal, referred the following question to  a Division Bench:--               "Whether after  coming  into operation  of the               right  of  pre-emption  is  contrary  to   the               provisions of Art. 19(1)(f) read with Art.  13               of the Constitution, or is it saved by  clause               (5) of Art. 19?  " The Divisional Bench held that the law relation to  pre-emp- tion  on the ground of vicinage was saved by clause  (5)  of Art. 19 and was not void under Art. 13 of the  Constitution. In  view  of this answer, the second appeal  was  dismissed. The High Court, however, certified the case and the  present appeal has been filed. The  question which was posed by Mr. Justice V. D.  Bhargava was considered by this Court in connection with s.10 of  the Rewa State Pre-emption Act, 1946 in Bhau Ram v. B.  Baijnath Singh (1).  This Court held by majority that the law of pre- emption  on  the  ground of  vicinage  imposed  unreasonable restrictions on the right to acquire, hold and to dispose of property guaranteed by Art. 19(1)(f) of the Constitution and was  void.  It was pointed out that it  placed  restrictions both  on  the  vendor and on the vendee  and  there  was  no advantage  to the general public and. that the  only  reason given in support of it, that it prevented persons  belonging to  different  religions,  races or  castes  from  acquiring property in any area peopled by persons of other  religious, races or castes, could not be considered reasonable in  view of Art. 15 of the Constitution. If this ruling applies the present appeal must succeed.  Mr. B.  C.  Misra,  who  appears  for  Labh  Singh  attempts  to distinguish  Bhau  Ram’s  case(1).   He  contends  that  the earlier  case  was  concerned  with  a  legislative  measure whereas the.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

(1)  [1962] Supp. 3 S.C.R. 724. 758 present  case of pre-emption arises from custom.  He  refers to  the  decision in Digambar Singh v.  Ahmad  Said  Khan(1) where the Judicial Committee of the Privy Council has  given the early history of the law of pre-emption in village  com- munities in India and points out that the law of pre-emption had  its  origin in the Mohammedan Law and was  the  result, some times, of a contract between the sharers in a  village. Mr. Misra contends that Arts. 14 and 15 are addressed to the State as defined in Art. 12 and are not applicable to custom or  contract  as neither, according to him, amounts  to  law within the definition given in Art. 13(3)(b) ’of the Consti- tution.   He submits that the ruling of this Court does  not cover the present case and that it is necessary to  consider the  question of the validity of the customary law  of  pre- emption based on vicinage. It  is hardly necessary to go into ancient law  to  discover the  sources of the law of pre-emption whether customary  or the result of contract or statute.  In so far as statute law is concerned Bhau Ram’s case(2 ) decides that a law of  pre- emption  based  on vicinage is void.  The reasons  given  by this  Court  to  hold statute law void apply  equally  to  a custom.  The only question thus is whether custom as such is affected  by  Part III dealing with fundamental  rights  and particularly  Art. 19(1)(f).  Mr. Misra  ingeniously  points out in this connection that Art. 13(1) deals with "all  laws in  force" and custom is not included in the  definition  of the phrase "laws in force" in clause (3)(b) of Art. 13.   It is convenient to read Art. 13 at this stage:               "13.(1) All laws in force in the territory  of               India  immediately before the commencement  of               this  Constitution,  in  so far  as  they  are               inconsistent with the provisions of this Part,               shall, to the extent of such inconsistency, be               void.               (2)   The  State shall not make any law  which               takes away or abridges the rights conferred by               this Part and any law made in contravention of               this  clause  shall,  to  the  extent  of  the               contravention, be void.               (3)   In  this  article,  unless  the  context               otherwise re-requires,-               (a)   "law"  includes  any  Ordinance,  order,               bye-law,   rule,   regulation,   notification,               custom  or  usage having in the  territory  of               India the force of law;               (b)   "law  in force" includes laws passed  or               made  by  a  Legislative  or  other  competent               authority in the territory of India before the               commencement  of  this  Constitution  and  not               previously               (2) [1962] Supp. 3 S.C.R. 724.               (1) L.R. 42 I.A. 10, 18.               759               repealed, notwithstanding that any such law or               any part thereof may not be then in  operation               either at all or in particular areas." The argument of Mr. Misra is that the definition of "law" in Art.  13(3)(a)  cannot  be used for purposes  of  the  first clause,  because it is intended to define the word "law"  in the  second clause.  According to him, the phrase  "laws  in force" which is used in clause (1) is defined in (3)(b)  and that definition alone governs the first clause, and as  that definition takes no account of customs or usage, the law  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

pre-emption based on custom is unaffected by Art.  19(1)(f). In  our judgment, the definition of the term "law"  must  be read with the first clause.  If the definition of the phrase "laws  in force" had not been given, it is quite clear  that the  definition of the word "law" would have been read  with the  first clause.  The question is whether by defining  the composite phrase "laws in force" the intention is to exclude the first definition.  The definition of the phrase "laws in force" is an inclusive definition and is intended to include laws  passed  or made by a Legislature  or  other  competent authority  before  the  commencement  of  the   Constitution irrespective  of the fact that the law or any  part  thereof was not in operation in particular areas or at all. in other words,  laws,  which were not in operation,  though  on  the statute  book, were included in the phrase "laws in  force". But  the second definition does not in any way restrict  the ambit  of the word "law" in the first clause as extended  by the definition of that word.  It merely seeks to amplify  it by including something which, but for the second definition, would  not be included by the first definition.   There  are two  compelling reasons why custom and usage having  in  the territory  of India the force of the law must be held to  be contemplated   by  the  expression  "all  laws  in   force". Firstly, to hold otherwise, would restrict the operation  of the  first  clause  in such ways that  none  of  the  things mentioned in the, first definition would be affected by  the fundamental  rights.   Secondly, it is to be seen  that  the second clause speaks of "laws" made by the State and  custom or usage is not made by the State.  If the first  definition governs only cl. (2) then the words "custom or usage", would apply  neither  to  cl. (1) nor to cl. (2)  and  this  could hardly  have  been intended.  It is obvious  that  both  the definitions  control the meaning of the first clause of  the Article.   The argument cannot, therefore, be accepted.   It follows that respondent No. 1 cannot now sustain the  decree in  view  of the prescriptions of the Constitution  and  the determination  of  this Court in Bhau  Ram’s  case(1).   The appeal will be allowed but in the circumstances of the  case parties will bear their costs throughout. Appeal allowed. (1) [1962] supp. 3 S.C.R. 724 760