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 article 191f read with article 13 of the Constitution or is it saved by clause 5 of article 19  The Divisional Bench held that the law relation to pre emp tion on the ground of vicinage was saved by clause 5 of article 19 and was not void under article 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 s10 of the Rewa State Pre emption Act 1946 in Bhau Ram vs 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 article 191f 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 article 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 case1
He contends that the earlier case was concerned with a legislative measure whereas the
1 1962 Supp 3 SCR 724
758 present case of pre emption arises from custom
He refers to the decision in Digambar Singh vs Ahmad Said Khan1 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 articles 14 and 15 are addressed to the State as defined in article 12 and are not applicable to custom or contract as neither according to him amounts to law within the definition given in article 133b 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 case2  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 article 191f
Mr Misra ingeniously points out in this connection that article 131 deals with all laws in force and custom is not included in the definition of the phrase laws in force in clause 3b of article 13
It is convenient to read article 13 at this stage 131 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 SCR 724
1 LR 42 IA 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 article 133a 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 3b 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 article 191f
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 case1
The appeal will be allowed but in the circumstances of the case parties will bear their costs throughout
Appeal allowed


Summary:
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 article 195 and was not void under article 13 of the Constitution
The appellant relied on the decision of this Court in Bhau Ram vs 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 article 131 dealt with all laws in force and custom was not included in the definition of the phrase laws in force in cl
3b of article 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 vs B Baijnath Singh 1962 Supp 3 SCR 724 followed
Digambar Singh vs Ahmad Said Khan LR 42 IA 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