Sant Ram & Ors Vs. Labh Singh
& Ors  INSC 122 (15 April 1964)
15/04/1964 GAJENDRAGADKAR, P.B.
(CJ) GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1965 AIR 166 1964 SCR (7) 745
R 1992 SC 248 (59,61)
Pre-emption-Based on custom-Whether infringes
Constitution of India-"Laws in force"-Whether includes custom and
usageConstitution of India, Arts. 13, 19.
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
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,  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
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
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 appellants 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-emption 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
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 preemption 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.
(1)  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 communities 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 Constitution. 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 preemption 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 preemption 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
(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)
 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
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.