Sultan Soft and others vs Shaban Soft and others

Niamat Ullah, President

(1) This appeal raises a question as to the interpretation of the fourteenth & fifteenth Sections of the Right of Prior Purchase Act, 1993, hereafter

called the State Act.

(2) On Magh 25, 2001, the respondent No. 5, Pt. Jai Lal Sopori execute?! a saledeed in respect of 4 Kanals 17 Marias of land situated in

Charamghari Mohalla in the city of Srinagar in favour of the appellants for an ostensible consideration of Rs. 5,000/. The property thus sold is

Malyari land included in Khewat No. 1 of Zilia Chhattabal, comprising Khasra Nos. 1334, 1337, 1338, 1339 asessed to Government Revenue of

Rs. 10143.

(3) The respondents Nos. 1 to 4 who are owners of property contiguous to property sold claim the right to preempt this property under Cl. 6 of

the fifteenth section of the State Act and they would be so entitled if that section be held applicable to the cause.

(4) The fourteenth and fifteenth sections of the State Act describe two separate categories of preemptors, the former in relation to ""agricultural

land"" and the 'village immoveable property' and the latter in relation to 'urban immoveable property'.' ' But the expression ""agricultural land"" as used

in the fourteenth section and the expression ""urban immoveable property"" as used in the fifteenth section, unless restricted by other provisions of

the Act, are wide enough in both cases to apply to agricultural land situate in a city and the main controversy in the case is whether the 'agricultural

land' as used in the fourteenth section should be restricted to villages & the urban immoveable property in section fifteen should be given its

ordinary meaning or whether 'agricultural land' in section fourteen be given its ordinary meaning and the 'urban immoveable property' in section

fifteen should receive a restricted interpretation so as to exclude agricultural land in a city.

(5) The two Courts below have concurrently held that the agricultural land within a city is to be regarded as the urban immoveable property for the

purpose of fifteenth section of the Act. Whether this view is correct is the sole question for the consideration of the Board in this appeal.

(6) In taking this view the provisions of the fourteenth section have not been given due consideration and if this had been done, the Process of

reasoning leading to the conclusion arrived at by the lower Courts would have presented (prevented?) considerable difficulty. The fourteenth

section opens with the provision that ""the Right of Prior Purchase in respect of 'agricultural land' and 'village immoveable property' shall vest in four

categories of persons none of which includes the owners of property contiguous to the property sold"". There can be no doubt that the words

'agricultural land' occurring in this section include agricultural land in an urban area as well as in a village. It is equally clear that the expression

immoveable property"" in this section does not include agricultural land. It follows ' that on the literal construction of section fourteen the owners of

contiguous properties have no right of preemption in respect of agricultural land wherever it may be situated. It is, however, contended that having

regard to the provisions of the fifteenth section ""agricultural land"" occurring in the fourteenth section should be taken to refer to such land in a

village. The contention is based on the opening sentence of the fifteenth section which provides that ""the Right of Prior Purchase in respect of urban

immoveable property shall vest"" among others, in the owners of property contiguous to ""he property sold. It is said that the expression 'urban

immoveable property' within the limits of a town must include agricultural land within such limits.

(7) There 'is no doubt that if this definition of urban immoveable property be imported in the fifteenth section and no account be taken of the

fourteenth section the argument would be sustainable. But neither section can be ignored in determining theRight of Preemption claimed by owners

of contiguous properties. The drafting is extremely unsatisfactory and the apparent conflict arising from the language of the two sections has to be

obviated by a reasonable construction of the two sections, it seems to the Board that the decisive question is whether the definition of ""urban

immoveable property"" should be imported in the fifteenth section.

(8) Now, the 3rd section of the Act which defines various terms employed in the Act expressly provides that ""unless there is anything repugnant in

the subject or context"", the words defined have to be taken to mean in terms of the definitions. In other words, the subject or context in any part of

the Act would give rise to a conflict between two provisions thereof, the definition is to be disregarded. As already shown a serious conflict arises

between the fourteenth and fifteenth sections if the expression ""urban immoveable property"" occurring in the latter be taken in the extended sense

according to the definition. On the other hand, reading the two sections together it is clear that property has been classified into three categories,

namely, (1) Agricultural Land which means land which is not occupied as the site of any building in a town or village end is occupied as and lent for

agricultural purposes or for purposes subservient to agricultural or pasture (C. F. definition of land in Jammu and Kashmir Alienation of Land Act,

1995 in S. 2 adopted by S. 3 of the Right of Prior Purchase Act) wherever situated wearier in a city or in a village, (2) Village Immoveable

Property and (3) Urban Immoveable Property. This classification clearly indicates that the words 'immoveable property' in Ss. 14 and 15 were not

intended by the framers of the Act to include agricultural land. Having provided by the fourteenth section that agricultural land, regardless of its

situation, can be the subject of preemption by the four classes of persons therein mentioned it could not have intended that such land should be

again pro.vided for In the fifteenth section and the right of prior purchase given to quite a different set of persons. The construction of the fourteenth

section, which found favour with the lower Courts, would insert the words ""in a village"" after the words ""agricultural land"" or the word ""village

before them, which is not permissible. The words ""agricultural land"" in section fourteen are unqualified and there is no justification for adding the

word ""village"" before them or the words ""in a village"" after them.

(9) Accordingly the Board are of opinion that the fifteenth section of the Act is not applicable to the case and that the right of prior purchase is to

be determined according to the fourteenth section which does not entitle owners of property contiguous to the property sold.

(10) The land in suit is admittedly agricultural land. It seems to have been common ground between the parties that the respondents 1 to 4 are

entitled to preempt if the fifteenth section is applicable which as already held, is not the case. But they may be entitled to preempt under S. 14 and

this question should be decided. The result is that this appeal should be allowed, the decrees of the lower Courts set aside and the suit of the

respondents 1 to 4 remanded to the trial Court for disposal according to law. The Board think that in view of the unsatisfactory drafting of the Act,

which was largely responsible for this litigation, the parties should bear their own costs so far incurred. The Board humbly advise His Highness

accordingly.

(11) R.G.D. Appeal allowed.