The right of pre-emption based on vicinage is ultra vires the Constitution as it discriminates against citizens on the ground of place of birth and violates Article 14 of the Constitution.

S.N. Deedwania, J.-These writ petitions at the stage of admission are being decided by this order. The facts need not be given except that non-petitioner No. 1 plaintiff filed the two suits alleging a right of pre-emotion on the basis of easement. Petitioner-defendant No 1 is the purchaser of these two properties and non-petitioner No. 2 is the seller. It appears that non-petitioner No. 2 was a dominant owner and non -petitioner No. 1 plaintiff was a servant owner. The writ petitions are filed presumably under Article 228 of the Constitution. The vires of Section 6 (1) (iii) is sought to be challenged, which reads as under “Section 6. Persons to whom pre-emption accrues-

(1) Subject to the other provisions of this Act, the right of pre-emption in respect of any immovable property transferred shall accrue to and vest in, the following classes of persons, namely -

(i) and (ii)

(iii) owners of property servient or dominant to the property transferred.” It is argued by the learned Counsel for the petitioner that the react of pre-emption is a personal right and is discriminatory against the petitioner as Article 14 of the Constitution prohibits the discrimination against any citizen only on the grounds of religion, race, caste, sex, place of birth or any of them. Section 6 (1) (iii) of the Rajasthan Pre-emption Act (hereinafter referred to as ‘the Act’) creates a discrimination against a citizen on the ground of place of birth, inasmuch as, he is deprived of his right to purchase any property of his choice. I have considered the argument carefully. It is no longer open to doubt that a right of preemption on the ground of vicinage is ultra vires the Constitution. It was thus observed in Bhau Ram vs. Bali Nath Singh, (AIR 1962 SC 1476). “But the Constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Article 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public. Though therefore, the ostensible reason for pre-emption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre-emption based on vicinage was really meant to prevent strangers i.e., people belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable, and the main reason therefore which sustained the law of preemption based on vicinage in previous times can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property as now guaranteed under Article 19(1)(i), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the state of society in the present day. The same reasoning in our opinion will apply to the third ground, “where the sale is of a property having a stair-case common to other properties, in the owners of such properties”. This ground stands on the same footing practically as the first ground relating to co-sharers, and for the same reason we hold that it is a reasonable restriction, and is in the interest of general public.” It was also thus held in Panch Gujar Gaur Brabmans vs. Amar Singh. (AIR 1954 Raj 100) (FB). “Now so far as the re-conveyance of the property to a pre-emptor claiming as a co-sharer or a participator in immunities and appendages is concerned, there were certain reasons of convenience behind this principle, the chief being to prevent any disturbance by a stranger to the enjoyment of the property by a co-sharer or participator in the immunities and appendages. Phear. J. observed in ‘Nusrut Reza vs. Umbul Khyr Bibee’. (18