Judgment

RANGANATHAN, J.:- Special leave granted. The appeal is also disposed of after hearing both counsel as it involves a very short question.

2. The appellant purchased certain land in village Barara, District Ambala, from one Smt. Diwan Devi by a registered sale deed on 23-8-1979. The respondent, the daughter of the vendor and a co-sharer with her in respect of the land in question filed a suit in the court of learned Sub-Judge, Ambala City for possession. She claimed that she was entitled to pre-emption in respect of the land in question. This claim of pre-emption was accepted by the learned Sub-Judge and this (was) confirmed on appeal by the learned Additional District Judge and the High Court.

3. The contention of the petitioner in the Special Leave Petition is that the suit land, though originally rural immovable property has become non- agricultural urban immovable property by reason of a notification of the State Government dated 16-4-1981 and that the respondent is not entitled to rights of pre-emption in respect thereof. It was submitted that the courts should have taken judicial notice of the notification and dismissed the respondents claim for pre-emption.

4. However, when the appeal came on for hearing before us, learned counsel for the petitioner submitted that the respondent cannot exercise any rights of pre-emption inasmuch as section 15 of the Punjab Pre Emption Act, 1913 (I of 1913), in certain respects, has been declared invalid and ultra vires by a decision of this Court. Our attention was drawn to the decision in Atam Prakash v. State of Haryana, (1986) 2 SCC 249, as further clarified by the later decision in Jagdish v. Nathi Mal Kejriwal, (1986) 4 SCC 510. Since the counsel for the respondent contests the correctness of this contention, it is necessary to set out a few relevant details.

5. The Punjab Pre-Emption Act, 1913 confers a right of pre-emption in certain persons in respect of sales of agricultural land and village immovable property. It is sufficient for the purposes of this case to set out the provisions of Section 15 :

"S. 15. Persons in whom right of pre-emption vests in respect of sales of agricultural land and village immovable property (1) The right of pre-emption in respect of agricultural land and village immovable property shall vest -

(a) where the sale is by a sole owner -

First, in the son or daughter or sons son or daughters son of the vendor;

Secondly, in the brother or brothers son of the vendor ;

Thirdly, in the fathers brother or fathers brothers son of the vendor ;

Fourthly, in the tenant who holds under tenancy of the vendor the land or property sold or a part thereof ;

(b) where the sale is of a share out of joint land or property and is not made by all the co-sharers jointly -

First, in the sons or daughters or sons sons or daughters sons of the vendor or vendors;

Secondly, in the brothers or brothers sons of the vendor or vendors;

Thirdly, in the fathers brother or fathers brothers sons of the vendor or vendors;

Fourthly, in the other co-sharers;

Fifthly, in the tenants who hold under tenancy of the vendor or vendors the land or property sold or a part thereof;

(c) where the sale is of land or property owned jointly and is made by all the co-sharers jointly -

First, in the sons or daughters or sons sons or daughters sons of the vendors;

Secondly, in the brothers or brothers sons of the vendors;

Thirdly, in the fathers brothers or fathers brothers sons of vendors;

Fourthly, in the tenants who hold under tenancy of the vendors or any one of them the land or property sold or a part thereof.

(2) Notwithstanding anything contained in sub-section (1) : -

(a) where the sale is by a female of land or property to which she has succeeded through her father or brother or the sale in respect of such land or property is by the son or daughter of such female after inheritance, the right of pre-emption shall vest: -

(i) if the sale is by such female, in her brother or brothers son;

(ii) if the sale is by the so