Write a short but critical note on the Constitutional validity of pre-emption.

Question: Write a short but critical note on the Constitutional validity of pre-emption. [BJS 1984]

Find the question and answer of Muslim Law only on Legal Bites. [Write a short but critical note on the Constitutional validity of pre-emption.]

Answer

The right of Shufa or Pre-emption is a right that the owner of the immovable property possesses to acquire by purchasing another immovable property that has been sold to another person.

The right of pre-emption arises from full ownership, and it is immaterial that a pre-emptor is not in possession of his property. It is the ownership and not possession that gives rise to the right of pre-emption.

As far as the constitutional validity of the right of pre-emption is concerned, it can look into Pre-emption after dividing two stages, (i) before the 44th Constitutional Amendment, and (ii) after the 44th Constitutional Amendment.

44th Constitutional Amendment:

(i) Before the 44th Constitutional Amendment, 1978:

Article 19(1) (f) of the Indian Constitution provides all citizens had a fundamental right to acquire, hold and dispose of the property. Article 19 (5) provided that reasonable restrictions may be imposed on this right of a person to acquire, hold and dispose off a property yet it was protected under Clause (5) of Article 19. With the help of power exercise under this Clause, this right on the ground of vicinage or on the ground of consanguinity, or on the ground of participation of some immunity was held Constitutional. Further, the right held Constitutional whether it was exercised under some enactment or under Muslim personal law.

But in 1962, in the case of Bhau Ram v. Baij Nath, AIR 1962 SC 1476, the Supreme Court overruled this view and held that Pre-emption only on the ground of vicinage was unconstitutional and cannot be enforced. The court held that unless the Preemptor and the vendors are co-sharer or participators in some immunity, the right cannot be protected. Accordingly, the claim of Pre-emption on the ground of being a co-sharer or participator in immunity was constitutional but Pre-emption only on the ground of vicinity was unconstitutional.

(ii) After the 44th Constitutional Amendment:

Article 19(1) (f) has now been repealed by the 44th Amendment Act, of 1978. The result is that now there is no fundamental right of acquiring, holding, and disposing off a property. Thus, the right to acquire, hold and dispose off, is neither a fundamental right nor a mere constitutional right. However, Pre-emption still continues to be a legal right. It is, therefore, submitted that the reasonableness of the right of pre-emption can still be examined under Articles 14 and 15 of the Constitution.

In Atma Prakash v. State of Haryana, (1986) 2 SCC 249, the Supreme Court held that claim of Pre-emption on grounds of consanguinity is ultra vires. The court observed that the reasons which justified Pre-emption in the past namely, the preservation of the integrity of rural society, the unity of family life, and the agnatic theory of succession, are totally irrelevant. The court held that the claim for possession by way of Pre-emption only on the ground that the claimant had superior rights being the father's brother's son of the owner, cannot be sustained. Accordingly, Section 15 of the Punjab Pre-emption Act, 1923 (which provided Pre-emption to co-sharer for kinsfolk of a vendor) was held to be unconstitutional by the Supreme Court because there was no reasonable classification of the co-sharer entitled to claim Pre-emption.

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