The economy of a country depends on the transfer of property. The transfer of property can be divided into two types. It may be either gratuitous or non-gratuitous. In the case of non-gratuitous transfer of property, Muslims are not subject to their personal laws in every case. On certain matters, the Indian legislature has promulgated legislation on various topics applicable to Indians, including Muslims. However, there are still certain subject Muslims that are governed by their own personal laws. The law of pre-emption is one of them. To this day, in most parts of the country, Muslims enjoy the privilege of being governed by their own pre-emptive laws.
The term ‘shuffa’ is a right of substitution granted to someone through regulation, custom or contract. The right is based on the seller’s and the seller’s established terms of sale, prioritizing the seller’s position. Mulla, defines the term Pre-emption in case of Vijayalakshmi v. B. Himantharaja Chetty, (1996) 9 SCC 376 The right of ‘Shuffa’, or right of first refusal, is the right obtained by the owner of immovable property by purchasing another immovable property that has been sold to others.
The concept of ‘Pre-emption’ originated from Islamic law and was not known in India until the emergence of Mughal rule. This is implemented as a general land law and applies to Hindus and Muslims. Later, it was used by the British for justice, fairness and conscience, even for Muslims. In India, there are four sources of pre-emption rights, including Muslim personal laws, customs, regulations, and contracts. For Muslims, the right of Pre-emption is a part of their personal laws, while among Hindus, the right of Pre-emption is mainly regarded as a customary right. Law of pre-emption in some areas was regulated by statutes such as Punjab Pre-emption Act 1913, Agra Pre-emption Act 1922, Bhopal Land Pre-emption Act, 1934, Rewa Pre-emption Act, 1946 and Rajasthan Pre-emption Act, 1956. Lastly, the right of pre-emption was also created by contract.
Justice Syed Mahmood in case of Gobind Dayalv. Inayatullah(1885) 7 All 775 The pre-emption has been defined as a right given to the owners of an immovable property for low amusement of that immovable property to obtain in exchange for the buyer, possession of certain other immovable property, on such term that as those on which such latter immovable property is sold to any other person.
Classification of Pre-emptors
There are three classification of Pre-emptor:
The Shafi-i-Sharik or a co-owner in the property.
The Shafi-i-Khalit or a participator in appendages. This expression means a person who is entitled to such easements as a right of way, or discharge of water.
The Shafi-i-Jar or owner of an adjoining property.
The right of pre-emption emerges from full proprietorship, and it is unimportant that a pre-emptor isn’t in control of his property. It is the ownership and not belonging which brings about the right of pre-emption.
In Najam-un-Nissav.Ajaib Ali, (1900) 22 All 342 The right of pre-emption emerges just in two ways of transfer of property – sale, and exchange. At the point when it emerges in regard of a sale, then, at that point the sale should be finished, bonafide and legitimate. Similarly the right of pre-emption arises in respect of exchange when it is complete, bonafide and valid.
Formalities for the Exercise of the Right of Pre-emption
The pre-emptor has got to declare his intention to say the correct directly once obtaining information concerning the sale (this is called Talab-i-Mowasibat). Such declaration of the intention must be made in the presence of two witnesses (this is known as Talab-i-Ishhad). After that, the legal action gets initiated i.e. (Talab-i-Tamlik).
Constitutional Validity
Before the 44th Constitutional Amendment Act, 1978 the law of pre-emption encroaches the key right i.e. fundamental right to hold and discard property, ensured under Article 19(1)(f) and Article 31 of the Constitution. But after the above amendment both articles was taken away from part III of the Indian Constitution and presently it was subjected as a constitutional right under article 300A. Before this amendment it was declared by various judgment of Supreme Court and held that the statutory provision of pre-emption on the basis of vicinage is unconstitutional.
In 1962, the Supreme Court got a chance to choose the subject of constitutionality of Pre-emption on account of Bhau Ramv.BajiNath, AIR 1962 SC 1476 wherein the Supreme Court held the legal arrangement of pre-emption based on vicinage is unconstitutional. Later, in another case, Sant Ramv.Labh Singh,AIR 1965 SC 314 the Supreme Court with comparable line holds the standard act of pre-emption by vicinage is illegal.
The whole discussion over the constitutionality got adjusted after 1978 because of the presentation of the 44thamendment and utilization of the past laws must be manage cautiously. It delivered the right to property simply a constitutional right and not a fundamental right. Notwithstanding, the legitimateness of pre-emption keeps on excess under legal examination. Since, the right to property was there as a constitutional right, its sensibility was checked under article 14 and 15 of the constitution.
In Raghunath (D) by Lrs. V.Radha Mohan AIR 2020 SC 5026 pronounced that the right of pre-emption is only exercisable for the first time when the cause of such a right arises. If such person finds it is not worth once, it is not an open right available for all times to come to that person.
The right of Pre-emption is the right of a controlling shared tenant. It was familiar with the Indian subcontinent, the application of pre-emption is very limited now. In today’s society, the significance of pre-emption has rapidly diminished. People are busy living and working now; they don’t have enough time to come to neighboring properties. Some people still take advantage of the opportunity to apply for the right of pre-emption, especially when agricultural land is needed; they have to face some legal complications, and the parties bought the land and improved the land.
Dr. Ausaf Ahmad Malik
(Academic Coordinator)
Assistant Professor