PUNJAB PRE-EMPTION ACT, 1913

PUNJAB PRE-EMPTION ACT, 1913

Preamble - THE PUNJAB PRE-EMPTION ACT, 1913

THE PUNJAB PRE-EMPTION ACT, 1913

[Act No. 13 of 1913]

PREAMBLE

An Act to amend the Law relating to Pre-emption in [1] [Haryana]

Whereas, it is expedient to amend the Law relating to pre-emption in [2]Haryana]: It is hereby enacted as follows :

Section 1 - Short title and local extent

(1)     This Act may be called the Punjab Pre-emption Act, 1913.

(2)     It extends to 1[Haryana].

___________________

1. Substituted for the word "Punjab" by the Haryana Adaptation of Laws Order, 1968.

Section 2 - Repeal of certain enactments

(1)     The Punjab Pre-emption Act, 1905, is hereby repealed.

(2)     Nothing in this Act shall affect the provisions of Order 21, Rule 88, of the Code of Civil Procedure, 1908, or Sections 53 and 54 of the Punjab Tenancy Act, 1887.

(3)     Notwithstanding anything to the contrary in Section 4 of the Punjab General Clauses Act, 1898, the Courts shall in all suits, appeals and proceedings pending at the commencement of this Act give effect, so far as may be, to the procedure prescribed by this Act.

Section 3 - Definitions

In this Act unless a different intention appears from the subject or context, -

(1)     'agricultural land' shall mean land as defined in the [3] [Punjab Alienation of Land Act, 1900] (as amended by Act I of 1907), but shall not include the rights of a mortgagee, whether usufructuary or not, in such land;

(2)     'village immovable property' shall mean immovable property within the limits of a village other than agricultural land;

(3)     urban immovable property' shall mean immovable property within the limits of a town, other than agricultural land. For the purposes of this Act a specified place shall be deemed to be a town (a) if so declared by the [4] [State] Government by notification in the Official Gazette, or (b) if so found by the Courts;

(4)     'member of an agricultural tribe' and 'group of agricultural tribes' shall have the meanings assigned to them, respectively, under the 1[Punjab Alienation of Land Act, 1900].

(5)     Sale shall not include ?

(a)      a sale in execution of a decree for money or of an order of a Civil, Criminal or Revenue Court or of a Revenue Officer;

(b)      the creation of an occupancy tenancy by landlord, whether for consideration or otherwise;

(6)     any expression which is defined by Section 3 of the Punjab Land Revenue Act, 1887, shall, subject to the provisions of this Act, have the meaning assigned to it in the said section.

Section 4 - Right of pre-emption application of

The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property.

Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale.

Section 5 - No right of pre-emption in certain cases

[5] [No right of pre-emption shall exist in respect of -

(a)      the sale of or foreclosure of a right to redeem ?

(i)       a shop, serai or katra;

(ii)      a dharmsala, mosque or other similar building; or

(b)      the sale of agricultural land being waste land reclaimed by the vendee.

Explanation.--For the purpose of this section the expression "waste land" means land recorded as banjar of any kind in revenue records and such ghair mumkin lands as are reclaimable.

Section 6 - Exists in agricultural land and village immovable property

A right of preemption shall exist in respect of village immovable property, and, subject to the provisions of clause (b) of Section 5, in respect of agricultural land, but every such right shall be subject to all the provisions and limitations in this Act contained].

Section 7 - Exists under certain conditions in urban immovable property

Subject to the provisions of Section 5 a right of pre-emption shall exist in respect of urban immovable property in any town or sub-division of a town when a custom of pre-emption is proved to have been in existence in such town or sub- division at the time of the commencement of this Act, and not otherwise.

Section 8 - State Government may exclude areas from pre-emption

(1)     Except as may otherwise be declared in the case of any agricultural land in a notification by the [6] [State] Government no right of pre-emption shall exist within any cantonment.

(2)     The [7] [State] Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales, no right of pre-emption or only such limited right as the [8] [State] Government may specify, shall exist.

Section 9 - Exclusion of pre-emption in respect of certain alienation

Notwithstanding anything in this Act, a right of pre-emption shall not exist in respect of any sale made by or to [9] [Government] or by or to any local authority or to any company under the provisions of part VII of the Land Acquisition Act, 1894, or in respect of any sale sanctioned by the Deputy Commissioner under Section 3(2) of the [10] [Punjab Alienation of Land Act, 1900].

Section 10 - Party to alienation cannot claim pre-emption

In the case of a sale by joint-owners, no party to such sale shall be permitted to claim a right of pre-emption.

Section 11 - Sum deposited into Court by pre-emptor not to be attached

No sum deposited in or paid by a pre-emptor under the provisions of this Act or of the Code of Civil Procedure shall, while it is in the custody of the Court, be liable to attachment in execution of a decree, or order of a Civil, Criminal or Revenue Court, or of a Revenue Officer.

Section 12 - The law determining the right of pre-emption

In respect of all sales and foreclosures not completed before the commencement of this Act the right of preemption shall be determined by the provisions of this Act; but in respect of all sales and foreclosures completed before the commencement of this Act the right of preemption shall be determined by the law in force at the time of such completion.

Section 13 - Joint right of pre-emption how exercised

Whenever according to the provisions of this Act a right of pre-emption vests in any class or group of persons the right may be exercised by all the members of such class or group jointly, and, if not exercised by them all jointly by any two or more of them jointly, by them severally.

Section 14 - Limit of exercise of right in respect of land sold by member of an agricultural tribe

No person other than a person who was at the date of sale a member of an agricultural tribe in the same group of agricultural tribes as the vendor shall have a right of pre-emption in respect of agricultural land sold by a member of an agricultural tribe.

Section 15 - Right of pre-emption of vest in tenant

The right of pre-emption in respect of sale of agricultural land and village immovable property shall vest in the tenant who holds under tenancy of the vendor or vendors the land or property sold or a part thereof.][11]

Section 16 - Person in whom right of pre-emption vests in an urban immovable property

[12]The right of pre-emption in respect of urban immovable property shall vest in the tenant who holds under tenancy of the vendor the property sold or a part thereof].

Section 17 - Exercise of right of pre-emption where several persons equally entitled

Where several pre-emption are found by the Court to be equally entitled to the right of pre-emption, the said right shall be exercised -

(a)      if they claim as co-sharers, in proportion among themselves to the shares they already hold in the land or property;

(b)      if they claim as heirs, whether co-sharers or not, in proportion among themselves to the shares in which but for such sale they would inherit the land or property in the event of the vendor's decease without other heirs;

(c)      [13] [omitted]..

(d)      [14] [omitted].

(e)      in any other case, by such pre-emption in equal shares.

Section 18 - Provisions of Sections 15 and 17 applicable to foreclosures mutatis mulandis

In the case of a foreclosure of the right to redeem village immovable property, the provisions of Sections 15 and 17 and in the case of a foreclosure of the right to redeem urban immovable property, the provisions of Sections 16 and 17 shall be construed by the Court with such alterations, not affecting the substance, as may be necessary or proper to adopt them to the matter before the Court.

Section 19 - Notice to pre-emptors

When any person proposes to sell any agricultural land or village immovable property or urban immovable property or to foreclose the right to redeem any village immovable property or urban immovable property in respect of which any persons have a right of pre-emption, he may give notice to all such persons of the price at which he is willing to sell such land or property or of the amount due in respect of the mortgage as the case may be.

Such notice shall be given through any Court within the local limits-of whose jurisdiction such land or property or any part thereof is situate, and shall be deemed sufficiently given if it be stuck up on the chaupal or other public place of the village, town or place in which the land or property is situate.

Section 20 - Notice by pre-emptor to vendor

The right of pre-emption of any person shall be extinguished unless such person shall within the period of three months from the date on which the notice under Section 19 is duly given or within such further period, not exceeding one year from such date, as the Court may allow, present to the Court a notice for service on the vendor or mortgagee of his intention to enforce his right of pre-emption. Such notice shall state whether the pre-emptor accepts the price pr amount due on the footing of the mortgage as correct or not and if not, what sum he is willing to pay.

When the Court is satisfied that the said notice has been duly served on the vendor or mortgagee, the proceedings shall be filed.

Section 21 - Suits for pre-emption

Any person entitled to a right of pre-emption may, when the sale or foreclosure has been completed, bring a suit to enforce that right.

Section 21A - Section 21

[15] [ Any improvement, otherwise than through inheritance or succession, made, in the status of a vendee defendant after the institution of a suit for pre- emption shall not affect the right of the pre-emptor plaintiff in such suit.]

Section 22 - Plaintiff may be called on to make deposit or to file security

(1)     In every suit for pre-emption the Court shall at, or at any time before, the settlement of issues, require the plaintiff to deposit in Court such sum as does not, in the option of the Court, exceed one-fifth of the probable value of the land or property, or require the plaintiff to give security to the satisfaction of the Court for the payment, if required, of a sum not exceeding such probable value within such time as the Court may fix in such order.

(2)     In any appeal the Appellate Court may at any time exercise the powers conferred on a Court under sub-section (1).

(3)     Every sum deposited or secured under sub-sections (1) and (2), shall be available for the discharge of costs.

(4)     If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in sub-sections (1) or (2), his plaint shall be rejected or his appeal dismissed, as the case may be.

(5)     (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed.

(b) ??If any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish fresh security or to increase the security, as the case may be, within a time to be fixed by the Court and if the plaintiff fails to comply with such order, the suit or appeal shall be dismissed.

(6)     The estimate of the probable value made for the purpose of sub-section (1) shall not affect any decision subsequently come to as to what is the market value of the land or property.

Section 23 - Special conditions relating to sales of agricultural land

No decree shall be granted in a suit for pre-emption in respect of the sale of agricultural land until, the plaintiff has satisfied the Court ?

(a)      that the sale in respect of which pre-emption is claimed is not in contravention of the [16] [Punjab Alienation of Land Act, 1900]; and

(b)      that he is not debarred by the provisions of Section 14 of this Act from exercising the right of pre-emption.

Section 24 - Procedure on determination of the said issues

In a suit for pre- emption in respect of a sale of agricultural land, if the Court finds that the sale is in contravention of the [17] [Punjab Alienation of Land Act, 1900] of the Court shall dismiss the suit.

Section 25 - Fixing of price for purposes of suit in case of sales

(1)     If in the case of a sale the parties are not agreed as to the price at which the pre- emptor shall exercise his right of pre-emption, the Court shall determine whether the price at which the sale purports to have taken place has been fixed in good faith or paid, and if it finds, that the price was not so fixed or paid, it shall fix as the price for the purposes of the suit the market value of the land or property.

(2)     If the Court finds that the price was fixed in good faith or paid, it shall fix such price as the price for the purposes of the suit

Provided that when the price at which the sale purports to have taken place represents entirely or mainly a debt greatly exceeding in amount the market value of the property, the Court shall fix the market value as the price of the land or property for the purposes of the suit, and may put the vendee to his option either to accept such value as the full equivalent of the consideration for the original sale or to have the said sale cancelled and the vendor and vendee restored to their original position.

Section 26 - Fixing of price for purposes of suit in case of foreclosure

If in case of a foreclosure the parties are not agreed as to the amount at which the pre-emptor shall exercise his right of pre-emption, the Court shall determine whether the amount claimed by the mortgagee is due under the terms of the mortgage, and whether it is claimed in good faith. If it finds that the amount is so due and is claimed in good faith, it shall fix such amount as the price for the purposes of the suit; but if it finds that the amount is not so due, or, though due, is not claimed in good faith, it shall fix as the price for the purposes of the suit the market value of the property.

Section 27 - "Market value" how to be determined

For the purpose of determining the market value, the Court may consider the following among other matters as evidence of such value -

(a)      the price or value actually received or to be received by the vendor from the vendee or the amount really due on the footing of the mortgage, as the case may be;

(b)      the amount of interest included in such price, value or amount;

(c)      the estimated amount of the average annual net assets of the land or property;

(d)      the land revenue assessed upon the land or property;

(e)      the value of similar land or property in the neighbourhood;

(f)       the value of the land or property as shown by previous sales or mortgages.

Section 28 - Concurrent hearing of suits

When more suits than one arising out of the same sale or foreclosure are pending, the plaintiff in each suit shall be joined as defendant in each of the other suits, and in deciding the suits the Court shall in each decree state the order in which each cl4imant is entitled to exercise his right.

Section 28A - Postponement of decision of pre-emption suits in certain cases

[18] (1) [If in any suit for pre- emption any person bases a claim or plea on a right of pre-emption derived from the ownership of agricultural land or other immovable property, and the title to such land or property is liable to be defeated by the enforcement of a right of pre-emption with respect to it, the Court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre-emption has expired and the suits for pre-emption (if any) instituted with respect to the land or property during the period have been finally decided.

(2) ??If the ownership of agricultural land or other immovable property is lost by the enforcement of a right of pre-emption, the Court shall disallow the claim or plea based upon the right of pre-emption derived therefrom.]

Section 28-A

Provisions - Court shall not decide the claim or plea until earlier suit in which title to such land or property is liable to be defeated by enforcement of a right of pre-emption with respect to it, is finally decided - Two suits impugning two sales were filed on the same day, yet once the defendants wanted to defeat right of plaintiff pre-emptor on the ground that they-are also co-sharers in the suit land because of earlier sale and the said sale itself being under challenge - Proceedings in present suit should have been stayed in view of provisions of Section 28-A of the Act - Petition dismissed Hamir Singh v. Bhagwan Singh, 1994(2) RRR 131(P&H)

Sections 28-A and 21-A -

Where a vendee improves his status by his voluntary efforts, during pendency of pre-emption suits or earlier to compete with intending pre-emptors cannot get any benefit so long as his inchoate right of pre-emption remains defeasible and does not mature into absolute right by efflux of time of limitation - Vendee purchased 1/8th share of land from one set of co-sharers and subsequently purchased 1/4th share of land from another co-sharer, suit instituted for pre-empting first sale and later on for pre-empting second sale another suit filed Plea that in view of Section 21-A vendee improved his status and having become co-sharer in suit land therefore pre-emptor did not have preferential right to pre-empt' sale -Not tenable -As acquisition of improved status is subject of provisions of Section 28-A court should not decided claim of vendee in second suit until earlier suit is finally decide - Vendee in first suit cannot take benefit of his being co-sharer due to second sale.Prema v. Surat Singh 1994(1) RRR 433(P&H)

Section 28-A. -

Land out of joint holding sold by one co-sharer - Suits for pre-emption filed - Another set of co-sharers also selling their land - Suit for pre-emption also filed -Prayer that proceedings in the first suit should be stayed not tenable -Both the suits be heard together. Surat Singh v. Prema and Ors. 1989(1) RRR 327(P&H).

Section 28-A -

Suit for possession by way of pre-emption - Defendants wanted to defeat right of pre-emptor on ground that defendants were also co- sharers in suit land on account of an earlier sale to them (defendants) - Said sale itself under challenge - The suit for pre-emption should be stayed till final disposal of earlier suit of preemptor with respect to the sale.Indraj v. Ami Lal and Ors., 1988(1) RRR 342(P&H).

Section 28-A -

Application by defendants for staying the proceedings in earlier suit - Only that plaintiff can file application whose claim is based on a right of preemption derived from ownership of land - Defendant cannot plead that one or the other ground being common, plaintiffs earlier instituted suit should be stayed.Kewal Krishan v. Jarnail Singh 1991(2) RRR 347(P&H)

Section 28-A - Applicability - Improvement in status.

Held that Section 28-A specifically provides for the case in which a vendee  who relies on improvement of status pendente lite, in case he loses the land on which his improved status depends; as a result of being pre-empted is non-suited in respect of his, plea of improved status. There is no corresponding provision for non-suiting of the plaintiff in case the vendee's allegation of improved Status is not challenged by a pre-emption suit.Jhangi Ram v. Pokhar Ram, 1947 PLR 14 : 231 IC 72 : AIR 1947 Lahore 259.

Section 29 - Copy of decree to be sent to Deputy Commissioner; application for revision

(1)     The Court shall send to the Deputy Commissioner a copy of every original decree granting pre-emption other than a decree granting pre- emption in respect of a building or site of a building in a town or sub- division of a town, and the Deputy Commissioner may, within two months from the date of the receipt of such copy, apply to the Court to which the appeal in the pre-emption suit would lie, or if no appeal lies, to the Division Court for revision of the decree on the ground that the decision of the Court of first instance is contrary to the provisions of the [19] [Punjab Alienation of Land Act, 1900].

(2)     No stamp shall be required upon such application, and the provision of the [20] [Code of Civil Procedure]' as regards appeals shall apply, as far as may be, to the procedure of the Appellate Court on receipt of such application.

(3)     No appearance by or on behalf of the Deputy Commissioner shall be deemed for the disposal of the application.

Section 30 - Limitation

In any case not provided for by article 10 of the Second Schedule of the Indian Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act shall, notwithstanding anything in Article 120 of the said schedule, be one year -

(1)     in the case of a sale of agricultural land or of village immovable property;

(2)     from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887; or from the date of which the vendee takes under the sale physical possession of any part of such land or property; whichever date shall be the earlier;

(3)     in the case of a foreclosure of the right to redeem village immovable property or urban immovable property;

(4)     from the date on which the title of the mortgagee to the property becomes absolute;

(5)     in the case of sale of urban immovable property, from the date on which the vendee takes under the sale physical possession of any part of the property.

Section 31 - Punjab Pre-emption (Amendment) Act, 1960, to apply to all suits

[21] [No' Court shall pass a decree in a suit for pre-emption whether instituted before or after the commencement of the Punjab Pre-emption (Amendment) Act, 1960 which is inconsistent with the provisions of the said Act.]