Case: Sant Ram And Ors Vs. Labh Singh And Ors

The first respondent Labh Singh owned the adjacent house and he claimed preemption 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 pre-empt 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 Singhs 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 Benchafter coming into operation of the Constitution, the right of pre-emption is contrary to the provisions of Art. 19(1) (f) read with Art. 13 of the Constitution, or it is saved by cl. (5) of Art. 19 ?Divisional Bench held that the law relating to pre-emption on the ground of vicinage was saved by cl. (5) of Art. 19 and was not void under Art. 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.

Reasoning:
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 "law 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 wise that none at 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 "Customs 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 Rams case, (1962) Supp 3 SCR 724 : (AIR 1962 SC 1476  ).