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In the following case, despite finding that there was a general custom of pre-emption in the area and that the respondent had a right to pre-empt under that custom, the judge dismissed the respondent’s 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 District Judge granted the respondent’s appeal. The appellants took their case to the High Court but were unsuccessful due to the Division Bench’s response to the question. The Division Bench concluded that “Article 19(5) of the Constitution[1]” saved the legislation pertaining to vicinage pre-emption and that it was not invalid under “Article 13 of the Constitution.[2]” The appellant used this Court’s ruling in “Bhau Ram v. Baijnath”[3]to argue that pre-emption on the basis of vicinage could not be asserted.

In their reply, the respondents argued that –

  • Bhau Ram’s case involved a legislative measure, whereas the present case arose from custom, and thus was distinguishable, and
  • Article 13(1) dealt with “all laws in force, and custom was not included in the definition of the phrase “laws in force” in “Clause (3) (b) of Article 13.


The issue that stood in front of the court was- “Whether after coming into operation of the right of pre-emption is contrary to the provisions of Article 19(1) (f) read with Article 13 of the Constitution, or is it saved by clause (5) of Article 19?”


Considering the relevant sections mentioned above, “Article 19(1)(f) of the Constitution” states that “All citizens shall have the right to acquire, hold and dispose of property” and “Article 13 of the Constitution” describes “the means for judicial review.” It makes the Indian state responsible for respecting and implementing basic rights. At the same time, it gives judges the authority to declare a law or conduct void if it violates basic rights. “Article 19(5) of the Constitution,” says “Nothing in the above clauses shall prevent the state from making any laws in the interests of the general public”. The majority of the Court found that the legislation of vicinage pre-emption placed unjustified limitations on the freedom to acquire, retain, and dispose of property granted by “Article 19(1) (f) of the Constitution” and was thus unconstitutional. It was argued that it imposed restrictions on both the vendor and the vendee, with no benefit to the general public, and that the only justification given for it, that it prevented people of different religions, races, or castes from acquiring property in areas populated by people of other religions, races, or castes, could not be considered reasonable in light of “Article 15 of the Constitution[4]”. If this decision holds true, the lawsuit must be won.

The respondent’s attorney claims that the previous case included a legislative measure, but the current issue of pre-emption is based on tradition. He cites the Privy Council’s decision in “Digambar Singh v. Ahmad Said Khan[5]”, in which the Judicial Committee outlines the early history of the law of pre-emption in Indian village communities, pointing out that the law of pre-emption has its roots in Mohammedan law and was sometimes the result of a contract between village sharers. He claims that this Court’s decision does not apply to the current issue and that it is essential to evaluate the legality of the vicinage-based customary rule of pre-emption.


It was held that- “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 were given by this Court to hold statute law void apply equally to a custom. Bhau Ram v. B. Baijnath Singh followed. Digambar Singh v. Ahmad Said Khan referred to” and “Custom and usage having in the territory of India the force of law are included in the expression all laws in force”. This appeal is permitted for the reasons stated, and the decision and decree of the High Court in the second appeal are reversed, and the respondents’ claim is dismissed as a result. There will be no costing order. I have arrived at the conclusion that the more desirable interpretation is that the pre-emption legislation, including the clause conferring a right to pre-empt on a “Shafi-e-jar (a person who has a right of pre-emption)”, remains lawful even after the Constitution takes effect. It does restrict the freedom to acquire and keep the property, but the restriction cannot be claimed to be irrational or not in the best interest of the public. We make it plain that if the sale deed is eventually signed, the respondents may seek pre-emption of the suit property if they are authorised to do so under the law.

Author(s) Name: Rithik Gullaiya (Symbiosis Law School, Noida)


[1]The Constitution of India, 1950, art. 19(5)

[2]The Constitution of India, 1950, art. 13

[3]Bhau Ram v. Baijnath1961, AIR 1327, 1962 SCR (1) 358

[4]Article 15, Constitution of India, 1950

[5]Digambar Singh v. Ahmad Said Khan(1915) 17 BOMLR 393

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