Sant Ram And Ors vs Labh Singh And Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 299 of 1964

Decision Date: 15 April 1964

Coram: P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, Hidayatullah, J.

In the matter titled Sant Ram and Others versus Labh Singh and Others, the Supreme Court of India delivered its judgment on the fifteenth day of April, 1964. The opinion was authored by Justice P B Gajendragadkar, who sat as Chief Justice, and was joined by Justices K N Wanchoo and K C Das Gupta. The petitioners were identified as Sant Ram and his co‑respondents, while the respondents were Labh Singh and his co‑respondents. The case was reported in the 1965 All India Reporter at page 166 and also in the 1964 Supplement to the Supreme Court Reports, volume seven, page 745. The legal issue concerned the validity of a pre‑emption rule based on a local custom, and whether such a rule infringed the Constitution of India, particularly the provisions dealing with “laws in force” under Article 13 and the freedom of trade under Article 19.

The factual background, as recorded in the headnote, indicated that the respondent Labh Singh filed a suit in the Munsif Court of Rampur asserting a right to pre‑empt a parcel of land sold by Kaiseri Begam, who was respondent No 2, on the basis of a customary pre‑emption practice in the locality. The Munsif judge recognized the existence of a general custom of pre‑emption and held that the respondent was entitled to exercise that right, but dismissed the suit because the sale deed omitted a narrow strip of land measuring three feet six inches between Labh Singh’s house and the transferred property. The District Judge allowed Labh Singh’s appeal, and the appellants subsequently challenged that decision before the Allahabad High Court, where a Division Bench referred a question for consideration. The Division Bench concluded that the pre‑emption rule based on vicinage was saved by Article 19(5) and therefore was not void under Article 13. The appellants relied on the Supreme Court’s decision in Bhau Ram v. Baijnath, arguing that pre‑emption on the ground of vicinage could not be claimed. In response, the respondents contended that the Bhau Ram case dealt with a statutory provision, whereas the present dispute arose from custom, and further argued that Article 13(1) refers to “all laws in force,” a phrase that does not encompass custom under clause 3(b) of Article 13. The Court held that, insofar as statutory law is concerned, the Bhau Ram decision declares a pre‑emptive law based on vicinage to be unconstitutional, and that the reasoning applied to statutes equally applies to customs. It further held that custom and usage possessing the force of law within the territory of India are included within the expression “all laws in force.”

The civil appeal, numbered 299 of 1964, arose from the judgment and order dated the twenty‑sixth of September, 1961, issued by the Allahabad High Court in second appeal number 620 of 1957. Counsel for the appellants was Mr J P Goyal, while counsel for respondent No 1 was Mr B C Misra. The judgment was pronounced on the fifteenth of April, 1964, and was delivered by Justice Hidayatullah. In his delivery, Justice Hidayatullah noted that the present appeal was filed by way of certificate from the High Court of Judicature at Allahabad, and that the appellants were the four original defendants in the underlying pre‑emption suit initiated by the first respondent. The appellate record further indicated that the sale of the plot by respondent No 2 had taken place on the fourth of December, 1953, and that the adjoining house owned by Labh Singh formed the basis of his claim of pre‑emptive right under the customary practice of vicinage.

On December 4 1953 the appellant‑defendants purchased two houses situated in the neighbourhood of Gher Abdul Rahman Khan, Qasba Milak, Tehsil Milak, District Rampur. The first respondent, Labh Singh, owned the house that was adjacent to the sold property and, after making the customary demand, claimed a right of pre‑emption based on vicinage. Labh Singh instituted a suit before the Munsif Court at Rampur. The Munsif delivered his judgment on September 25 1955, holding that a general custom of pre‑emption existed in the town of Milak. He further concluded that Labh Singh was entitled to exercise that pre‑emptive right and that he had complied with the required Talabs. Nonetheless, the Munsif dismissed the suit because the conveyance had omitted a strip of land measuring three feet six inches in width that lay between Labh Singh’s house and the property that had been sold. No directions regarding costs were made. Labh Singh appealed the decision, and the present appellants objected to that appeal. The District Judge of Rampur allowed Labh Singh’s appeal and rejected the cross‑objections raised by the appellants. Consequently, the appellants filed a second appeal before the Allahabad High Court. Justice V. D. Bhargava, who heard the second appeal, posed the following question to a Division Bench: “Whether, after coming into operation, the right of pre‑emption is contrary to the provisions of Article 19(1)(f) read with Article 13 of the Constitution, or whether it is saved by clause (5) of Article 19?” The Division Bench answered that the rule of pre‑emption on the ground of vicinage was saved by clause (5) of Article 19 and therefore was not void under Article 13. On the basis of this answer, the Division Bench dismissed the second appeal. The High Court, however, certified the matter, and the present appeal was filed before this Court. The question originally framed by Justice Bhargava was reconsidered here in relation to section 10 of the Rewa State Pre‑emption Act, 1946, as examined in Bhau Ram v. B. Baijnath Singh. In that case the majority held that a pre‑emption rule based on vicinage imposed unreasonable restrictions on the constitutional right to acquire, hold and dispose of property guaranteed by Article 19(1)(f), and was consequently void. The Court observed that the rule restricted both the seller and the buyer, conferred no benefit on the public, and that the justification offered—that it prevented persons of different religions, races or castes from acquiring property in each other’s localities—could not be deemed reasonable in light of Article 15. The Court indicated that, if that ruling were applicable, the present appeal should succeed. Counsel for Labh Singh, Mr. B. C. Misra, sought to distinguish Bhau Ram’s case, arguing that the earlier decision dealt with a statutory enactment whereas the present dispute arose from a custom. He cited the decision in Digambar Singh v. Ahmad Said Khan, wherein the Judicial Committee of the Privy Council had addressed the origins of pre‑emption law.

The Court observed that the early history of pre‑emption in Indian village communities shows that the rule originated from Mohammedan law and, at times, resulted from a contract among village co‑sharers. Counsel for the respondents argued that Articles 14 and 15 of the Constitution address only the State as defined in Article 12 and therefore do not apply to customs or contracts, because, in his view, neither of them qualifies as “law” within the meaning of Article 13(3)(b). He submitted that the earlier judgment of this Court does not govern the present dispute and that the matter requires an examination of the validity of the customary law of pre‑emption founded on the principle of vicinage. He further maintained that it is unnecessary to delve into ancient legal sources to ascertain the origins of pre‑emption, whether the rule is customary, contractual, or statutory. Regarding statutory law, he noted that the decision in Bhau Ram’s case (see footnote 2) held that a statute imposing pre‑emption on the basis of vicinage is void, and he argued that the reasons for declaring such a statute void apply equally to a customary rule. Consequently, the only remaining issue, he said, is whether a custom of this nature falls within the ambit of Part III of the Constitution, particularly Article 19(1)(f), which guarantees the right to acquire, hold, and dispose of property. Counsel ingeniously pointed out that Article 13(1) deals with “all laws in force” and that “custom” is not encompassed by the definition of “laws in force” found in clause (3)(b) of Article 13. For clarity, the Court reproduced the relevant portion of Article 13 as follows: “(1) All laws in force in the territory of India immediately before the commencement of this Constitution, to the extent of any inconsistency with this Part, shall 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 thereof shall be void to the extent of the contravention. (3) In this article, unless the context otherwise requires, (a) ‘law’ includes any ordinance, order, bye‑law, rule, regulation, notification, custom or usage having the force of law in the territory of India; (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 the Constitution, even if such law or any part of it was not then operative in any area.” The counsel argued that the definition of “law” in Article 13(3)(a) was intended only for the second clause of Article 13 and therefore should not be applied to the first clause. He further contended that the phrase “laws in force,” as employed in clause (1), is defined exclusively by clause (3)(b), and that this definition alone governs the application of the first clause.

In the present case the Court observed that the definition of “law” set out in the Constitution does not disregard customs or usage, and therefore a pre‑emptive right based on custom is not affected by the provision of Article 19(1)(f). The Court explained that the term “law” must be read together with the first clause of the relevant article. It noted that, had the definition of the composite expression “laws in force” not been provided, it would have been evident that the ordinary definition of the word “law” would have been applied to the first clause. The Court then considered whether the purpose of defining the phrase “laws in force” was to exclude the earlier definition. It held that the definition of “laws in force” is intentionally inclusive; it is meant to cover statutes, ordinances, rules, regulations, notifications, customs or usages that were passed or made by a legislature or any other competent authority before the commencement of the Constitution, even when such law—or any part of it—was not actually operative in certain areas or was not operative at all. In other words, statutes that remained on the books but were not in force were still captured within the phrase “laws in force”. The Court further clarified that the second definition does not limit the scope of the word “law” as extended by the first definition. Instead, the second definition expands the meaning by adding elements that, without it, would have been excluded by the first definition alone. The Court gave two strong reasons for holding that customs and usages possessing the force of law in the territory of India fall within the expression “all laws in force”. Firstly, to exclude them would unduly restrict the operation of the first clause, rendering none of the matters mentioned in the first definition subject to the protection of fundamental rights. Secondly, the second clause refers to “laws” made by the State, and customs or usages are not made by the State; therefore, if the first definition applied only to clause (2), the terms “custom or usage” would apply to neither clause (1) nor clause (2), a result that could not have been intended. Consequently, the Court concluded that both definitions jointly determine the meaning of the first clause of the article. The Court rejected the argument presented by the first respondent and held that the decree could not be sustained in view of the constitutional provisions and the earlier decision of the Court in Bhau Ram’s case. Accordingly, the appeal was allowed, and the parties were ordered to bear their own costs throughout the proceedings. The appeal was thus allowed, and the referenced citation is [1962] supp. 3 S.C.R. 724.